b'\x0c\x0cLiberty, Equality, and Due Process: Cases, Controversies, and Contexts in\nConstitutional Law\n\n\x0c\x0cLiberty, Equality, and Due Process:\nCases, Controversies, and Contexts in Constitutional Law\n\nRuthann Robson\nProfessor of Law & University Distinguished Professor\nCity University of New York (CUNY) School of Law\n\nCALI eLangdell\xc2\xae Press 2021\n\n\x0c\x0cLiberty, Equality, and Due Process: Cases, Controversies, and Contexts in Constitutional Law by Center for Computer-Assisted\nLegal Instruction is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except\nwhere otherwise noted.\n\nCopyright CALI 2021\nThis book was produced with Pressbooks (https://pressbooks.com) and rendered with Prince.\n\n\x0c\x0cContents\n\nAbout the Author\n\n1\n\nNotices\n\n2\n\nAbout CALI eLangdell Press\n\n3\n\nPreface\n\n4\n\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action\n\n5\n\nCHAPTER TWO: Introduction to Constitutional Interpretation and Judicial Review\n\n61\n\nCHAPTER THREE: Slavery and Racial Equality\n\n74\n\nCHAPTER FOUR: Race and Equal Protection - Part 1\n\n104\n\nCHAPTER FOUR: Race and Equal Protection - Part 2\n\n153\n\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1\n\n272\n\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2\n\n336\n\nCHAPTER SIX: Fundamental Rights and Equal Protection\n\n367\n\nCHAPTER SEVEN: The Privileges Or Immunities Clause\n\n425\n\nCHAPTER EIGHT: Incorporation and Fundamental Rights\n\n441\n\nCHAPTER NINE: The Second Amendment\n\n474\n\nCHAPTER TEN: Unenumerated Rights and Due Process\n\n504\n\nCHAPTER ELEVEN: Liberty, Due Process, and Equal Protection\n\n582\n\nCHAPTER TWELVE: State Constitutions\n\n636\n\nTable of Cases: Chronological\n\n645\n\n\x0c\x0cAbout the Author\nRuthann Robson is Professor of Law and University Distinguished Professor at the City University of\nNew York (CUNY) School of Law.\nShe is the author of First Amendment: Cases, Controversies, and Contexts (eLangdell).\nHer other books include DRESSING CONSTITUTIONALLY: HIERARCHY, SEXUALITY, AND\nDEMOCRACY (2013); SAPPHO GOES TO LAW SCHOOL (1998); GAY MEN, LESBIANS, AND THE LAW\n(1996); and LESBIAN (OUT)LAW: SURVIVAL UNDER THE RULE OF LAW (1992). She is also the editor of\nthe three volume set, INTERNATIONAL LIBRARY OF ESSAYS IN SEXUALITY & LAW (2011).\nShe is one of two editors of the Constitutional Law Professors Blog and a frequent commentator on\nconstitutional and sexuality issues.\nShe is one of the 26 professors selected for inclusion in WHAT THE BEST LAW TEACHERS DO\n(Harvard University Press, 2013).\n\nAbout the Author | 1\n\n\x0cNotices\nThis is the third edition of this Casebook, updated June 2021.\nVisit http://elangdell.cali.org/ for the latest version and for revision history.\nThis work by Ruthann Robson is licensed and published by CALI eLangdell Press under a Creative\nCommons Attribution-NonCommercial-ShareAlike 4.0 International (CC BY-NC-SA 4.0).\nCALI and CALI eLangdell Press reserve under copyright all rights not expressly granted by this\nCreative Commons license. CALI and CALI eLangdell Press do not assert copyright in US Government\nworks or other public domain material included herein. Permissions beyond the scope of this license\nmay be available through feedback@cali.org.\nIn brief, the terms of that license are that you may copy, distribute, and display this work, or make\nderivative works, so long as\n\xe2\x80\xa2 you give CALI eLangdell Press and the author credit;\n\xe2\x80\xa2 you do not use this work for commercial purposes; and\n\xe2\x80\xa2 you distribute any works derived from this one under the same licensing terms as this.\nSuggested attribution format for original work:\nRuthann Robson, Liberty, Equality, and Due Process: Cases, Controversies, and Contexts in\nConstitutional Law. Published by CALI eLangdell Press. Available under a Creative Commons BY-NCSA 4.0 License.\nCALI\xc2\xae and eLangdell\xc2\xae are United States federally registered trademarks owned by the Center for\nComputer-Assisted Legal Instruction. The cover art design is a copyrighted work of CALI, all rights\nreserved. The CALI graphical logo is a trademark and may not be used without permission.\nShould you create derivative works based on the text of this book or other Creative Commons\nmaterials therein, you may use this book\xe2\x80\x99s cover art and the aforementioned logos, as long as your\nuse does not imply endorsement by CALI. For all other uses beyond the scope of this license, please\nrequest written permission from CALI.\nThis material does not contain nor is intended to be legal advice. Users seeking legal advice should\nconsult with a licensed attorney in their jurisdiction. The editors have endeavored to provide\ncomplete and accurate information in this book. However, CALI does not warrant that the information\nprovided is complete and accurate. CALI disclaims all liability to any person for any loss caused by\nerrors or omissions in this collection of information.\n\n2 | Notices\n\n\x0cAbout CALI eLangdell Press\nThe Center for Computer-Assisted Legal Instruction (CALI\xc2\xae) is: a nonprofit organization with over\n200 member US law schools, an innovative force pushing legal education toward change for the better.\nThere are benefits to CALI membership for your school, firm, or organization. ELangdell\xc2\xae is our\nelectronic press with a mission to publish more open books for legal education.\nHow do we define \xe2\x80\x9copen?\xe2\x80\x9d\n\xe2\x80\xa2 Compatibility with devices like smartphones, tablets, and e-readers; as well as print.\n\xe2\x80\xa2 The right for educators to remix the materials through more lenient copyright policies.\n\xe2\x80\xa2 The ability for educators and students to adopt the materials for free. Find available and upcoming\neLangdell titles at elangdell.cali.org. Show support for CALI by following us on Facebook and Twitter,\nand by telling your friends and colleagues where you received your free book.\n\nAbout CALI eLangdell Press | 3\n\n\x0cPreface\nThis Casebook is intended as a Casebook for a course in Constitutional rights, focused on the\nguarantees of liberty, equal protection, and due process in the United States Constitution.\nIt stresses the doctrinal developments but also explores the theoretical and historical contours\nfocusing on the Fourteenth Amendment to the United States Constitution. The Casebook presents\nbasic concepts of constitutional adjudication and federalism, stresses equal protection doctrine and\nsubstantive due process, and introduces other constitutional liberties including the Second\nAmendment.\nThe Notes accompanying the cases emphasize skill development in constitutional analysis.\nNOTES ON TYPOGRAPHY\nCourt opinions often have typographical marks such as ellipses, brackets, and parenthesis. Some\nmore recent Court opinions also have a series of floating asterisk before the concluding paragraph or\nparagraphs.\nCourt opinions also generally have extensive citations. Many of these are included in the edited\nversions in this Casebook. However, complete citations are often omitted and references omitted or\ncondensed without editorial indications.\nEditorial marks in court opinions are as follows:\nOmissions from text are indicated by a series of four asterisks: * * * *\nAdditions to text are enclosed by curly brackets: { }\n\n4 | Preface\n\n\x0cCHAPTER ONE: An Introduction to\nConstitutional Law and the Issue of State\nAction\nI. Introduction\nThe doctrine of \xe2\x80\x9cstate action\xe2\x80\x9d is integral to American Constitutional law. With one notable exception,\nthe United States Constitution protects individual rights only against incursions by governments,\nwhether federal, state, or local. Generally, the Constitution does not govern the \xe2\x80\x9crights\xe2\x80\x9d of individuals\narguably infringed by other individuals (or corporations).\nNote that while the term generally used is \xe2\x80\x9cstate action,\xe2\x80\x9d \xe2\x80\x9cstate\xe2\x80\x9d here means all levels of government.\nThus, \xe2\x80\x9cstate action\xe2\x80\x9d can be the federal government or a municipal government, as well as a state.\nSometimes, the question of \xe2\x80\x9cstate action\xe2\x80\x9d is relatively simple.\nConsider whether a judge would be likely to grant or deny a motion to dismiss for failure to allege\nsufficient state action, if the plaintiff alleged a violation of the First Amendment:\nA. The California Legislature passed a statute that violated the plaintiff\xe2\x80\x99s First Amendment right to\nfreedom of speech.\nB. The City of Austin, in Texas, passed an ordinance that violated the plaintiff\xe2\x80\x99s First Amendment right\nto free exercise of religion.\nC. The Department of Prisons of Nevada, a state administrative agency, promulgated a regulation that\nviolated plaintiff\xe2\x80\x99s right to receive mail in violation of the First Amendment.\nD. The President of the United States issued an Executive Order that violated the plaintiff\xe2\x80\x99s First\nAmendment right to free exercise of religion.\nE. Federal Bureau of Investigation officers arrested plaintiff in violation of her First Amendment rights\nto assembly.\nF. A principal at a public school suspended plaintiff, a student, for wearing \xe2\x80\x9cinappropriate attire\xe2\x80\x9d in\nviolation of her First Amendment rights to \xe2\x80\x9csymbolic speech.\xe2\x80\x9d\nG. A father at the dinner table told his son to be quiet in violation of the child\xe2\x80\x99s First Amendment rights\nto freedom of speech.\nH. A rider on the subway shouted and blocked the way of subway performers in violation of their First\nAmendment rights to \xe2\x80\x9cartistic expression.\xe2\x80\x9d\nCHAPTER ONE: An Introduction to Constitutional Law and the\nIssue of State Action | 5\n\n\x0cI. A salesclerk in the Abercrombie & Fitch store on Fifth Avenue in New York asks a customer wearing\na head covering to leave the store in violation of her First Amendment rights.\nDetermining whether or not an action qualifies as \xe2\x80\x9cstate action\xe2\x80\x9d is not always so simple, as the cases\nin this Chapter demonstrate.\n\nII. Constitutional Provisions\nLet\xe2\x80\x99s begin by examining the text of some specific Constitutional provisions. Look for the \xe2\x80\x9cstate\naction\xe2\x80\x9d requirement, recalling that this includes the federal government. Is the language in some\nprovisions more explicit than in others? Is it absent in any?\n\nA. Fourteenth Amendment\nSection 1 of the Fourteenth Amendment provides:\nAll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens\nof the United States and of the State wherein they reside. No State shall make or enforce any law which\nshall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive\nany person of life, liberty, or property, without due process of law; nor deny to any person within its\njurisdiction the equal protection of the laws.\n\nB. First Amendment\nCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise\nthereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to\nassemble, and to petition the Government for a redress of grievances.\n\nC. Fifth Amendment\nNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or\nindictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in\nactual service in time of War or public danger; nor shall any person be subject for the same offence to be\ntwice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against\nhimself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property\nbe taken for public use, without just compensation.\n\n6 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cD. Thirteenth Amendment\nSection 1 of the Thirteenth Amendment provides:\nNeither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have\nbeen duly convicted, shall exist within the United States, or any place subject to their jurisdiction.\n\nIII. The \xe2\x80\x9cCivil Rights Cases\xe2\x80\x9d\nBoth the Thirteenth Amendment and Fourteenth Amendment became part of the Constitution after\nthe Civil War (1861-1865). The Thirteenth Amendment does not have a state action requirement:\nslavery and involuntary servitude are prohibited.\nAlong with the Fifteenth Amendment (\xe2\x80\x9cThe right of citizens of the United States to vote shall not be\ndenied or abridged by the United States or by any State on account of race, color, or previous condition\nof servitude\xe2\x80\x9d), these Amendments are also known as the \xe2\x80\x9cReconstruction Amendments.\xe2\x80\x9d\nEach of the Reconstruction Amendments also includes a section that states that \xe2\x80\x9cCongress shall have\nthe power to enforce\xe2\x80\x9d the Amendment by \xe2\x80\x9cappropriate legislation.\xe2\x80\x9d\nCongress passed the Civil Rights Act of 1875 forbidding racial discrimination in public\naccommodations including trains, hotels, theaters, and inns. Individuals who discriminated on the\nbasis of race could be subject to civil and criminal penalties.\nIn five consolidated cases known as the Civil Rights Cases, 109 U.S. 3 (1883), the United States Supreme\nCourt held that the Civil Rights Act of 1875 was unconstitutional. It held that Congress did not have\nthe power under either the Thirteenth or Fourteenth Amendments to prohibit racial discrimination by\nprivate persons. In short, the Court held that the Thirteenth Amendment\xe2\x80\x99s prohibition of slavery did\nnot include racial discrimination and that the Fourteenth Amendment only reached \xe2\x80\x9cstate aggression\xe2\x80\x9d\nnot the \xe2\x80\x9cwrongful acts of individuals.\xe2\x80\x9d\nThe Civil Rights Cases are difficult; we will return to the case at the end of this Chapter. But as you\nexamine the next cases, notice whether the Court considered the precedent of the Civil Rights Cases.\n\nIV. Toward a Doctrine of State Action\nMarsh v. Alabama\n326 U.S. 501 (1946)\n\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 7\n\n\x0cBLACK, J., DELIVERED THE OPINION OF THE COURT IN WHICH DOUGLAS, MURPHY AND RUTLEDGE, JJ., JOINED.\nFRANKFURTER, J., FILED A CONCURRING OPINION. REED., J., FILED A DISSENTING OPINION IN WHICH STONE, C.J., AND\nBURTON, J., JOINED. JACKSON, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE.\nMR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT.\nIn this case we are asked to decide whether a State, consistently with the First and Fourteenth\nAmendments, can impose criminal punishment on a person who undertakes to distribute religious\nliterature on the premises of a company-owned town contrary to the wishes of the town\xe2\x80\x99s\nmanagement. The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf\nShipbuilding Corporation. Except for that it has all the characteristics of any other American town.\nThe property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and\na \xe2\x80\x98business block\xe2\x80\x99 on which business places are situated. A deputy of the Mobile County Sheriff, paid\nby the company, serves as the town\xe2\x80\x99s policeman. Merchants and service establishments have rented\nthe stores and business places on the business block and the United States uses one of the places as\na post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area.\nThe town and the surrounding neighborhood, which can not be distinguished from the Gulf property\nby anyone not familiar with the property lines, are thickly settled, and according to all indications\nthe residents use the business block as their regular shopping center. To do so, they now, as they\nhave for many years, make use of a company-owned paved street and sidewalk located alongside the\nstore fronts in order to enter and leave the stores and the post office. Intersecting company-owned\nroads at each end of the business block lead into a four-lane public highway which runs parallel to the\nbusiness block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto\nthe business block and upon arrival a traveler may make free use of the facilities available there. In\nshort the town and its shopping district are accessible to and freely used by the public in general and\nthere is nothing to distinguish them from any other town and shopping center except the fact that the\ntitle to the property belongs to a private corporation.\nAppellant, a Jehovah\xe2\x80\x99s Witness, came onto the sidewalk we have just described, stood near the postoffice and undertook to distribute religious literature. In the stores the corporation had posted a\nnotice which read as follows: \xe2\x80\x98This Is Private Property, and Without Written Permission, No Street,\nor House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.\xe2\x80\x99 Appellant was warned that\nshe could not distribute the literature without a permit and told that no permit would be issued to\nher. She protested that the company rule could not be constitutionally applied so as to prohibit her\nfrom distributing religious writings. When she was asked to leave the sidewalk and Chickasaw she\ndeclined. The deputy sheriff arrested her and she was charged in the state court with violating Title\n14, Section 426 of the 1940 Alabama Code which makes it a crime to enter or remain on the premises of\nanother after having been warned not to do so. Appellant contended that to construe the state statute\nas applicable to her activities would abridge her right to freedom of press and religion contrary to\nthe First and Fourteenth Amendments to the Constitution. This contention was rejected and she was\nconvicted. The Alabama Court of Appeals affirmed the conviction, holding that the statute as applied\nwas constitutional because the title to the sidewalk was in the corporation and because the public use\nof the sidewalk had not been such as to give rise to a presumption under Alabama law of its irrevocable\n\n8 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cdedication to the public. The State Supreme Court denied certiorari, and the case is here on appeal\nunder Section 237(a) of the Judicial Code, 28 U.S.C. s 344(a).\nHad the title to Chickasaw belonged not to a private but to a municipal corporation and had appellant\nbeen arrested for violating a municipal ordinance rather than a ruling by those appointed by the\ncorporation to manage a company-town it would have been clear that appellant\xe2\x80\x99s conviction must be\nreversed. * * * * [H]ad the people of Chickasaw owned all the homes, and all the stores, and all the\nstreets, and all the sidewalks, all those owners together could not have set up a municipal government\nwith sufficient power to pass an ordinance completely barring the distribution of religious literature.\nOur question then narrows down to this: Can those people who live in or come to Chickasaw be\ndenied freedom of press and religion simply because a single company has legal title to all the town?\nFor it is the state\xe2\x80\x99s contention that the mere fact that all the property interests in the town are held\nby a single company is enough to give that company power, enforceable by a state statute, to abridge\nthese freedoms.\nWe do not agree that the corporation\xe2\x80\x99s property interests settle the question. The State urges in effect\nthat the corporation\xe2\x80\x99s right to control the inhabitants of Chickasaw is coextensive with the right of a\nhomeowner to regulate the conduct of his guests. We can not accept that contention. Ownership does\nnot always mean absolute dominion. The more an owner, for his advantage, opens up his property\nfor use by the public in general, the more do his rights become circumscribed by the statutory and\nconstitutional rights of those who use it. Thus, the owners of privately held bridges, ferries, turnpikes\nand railroads may not operate them as freely as a farmer does his farm. Since these facilities are built\nand operated primarily to benefit the public and since their operation is essentially a public function,\nit is subject to state regulation. * * * *\nWe do not think it makes any significant constitutional difference as to the relationship between the\nrights of the owner and those of the public that here the State, instead of permitting the corporation\nto operate a highway, permitted it to use its property as a town, operate a \xe2\x80\x98business block\xe2\x80\x99 in the\ntown and a street and sidewalk on that business block. Whether a corporation or a municipality owns\nor possesses the town the public in either case has an identical interest in the functioning of the\ncommunity in such manner that the channels of communication remain free. As we have heretofore\nstated, the town of Chickasaw does not function differently from any other town. The \xe2\x80\x98business block\xe2\x80\x99\nserves as the community shopping center and is freely accessible and open to the people in the area\nand those passing through. The managers appointed by the corporation cannot curtail the liberty of\npress and religion of these people consistently with the purposes of the Constitutional guarantees,\nand a state statute, as the one here involved, which enforces such action by criminally punishing those\nwho attempt to distribute religious literature clearly violates the First and Fourteenth Amendments\nto the Constitution.\nMany people in the United States live in company-owned towns.* These people, just as residents of\nmunicipalities, are free citizens of their State and country. Just as all other citizens they must make\ndecisions which affect the welfare of community and nation. To act as good citizens they must be\ninformed. In order to enable them to be properly informed their information must be uncensored.\n\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 9\n\n\x0cThere is no more reason for depriving these people of the liberties guaranteed by the First and\nFourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen.\nWhen we balance the Constitutional rights of owners of property against those of the people to enjoy\nfreedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy\na preferred position. * * * * In our view the circumstance that the property rights to the premises\nwhere the deprivation of liberty, here involved, took place, were held by others than the public, is\nnot sufficient to justify the State\xe2\x80\x99s permitting a corporation to govern a community of citizens so as\nto restrict their fundamental liberties and the enforcement of such restraint by the application of\na State statute. Insofar as the State has attempted to impose criminal punishment on appellant for\nundertaking to distribute religious literature in a company town, its action cannot stand.\nReversed and remanded.\n*\n\n{Footnote 5 of Court\xe2\x80\x99s opinion} In the bituminous coal industry alone, approximately one-half of\n\nthe miners in the United States lived in company-owned houses in the period from 1922-23. The\npercentage varied from nine per cent in Illinois and Indiana and 64 percent in Kentucky, to almost\n80 per cent in West Virginia. U.S. Coal Commission, Report, 1925, Part III, pp. 1467, 1469 summarized\nin Morris, The Plight of the Coal Miner, Philadelphia 1934, Ch. VI, p. 86. The most recent statistics\nwe found available are in Magnusson, Housing by Employers in the United States, Bureau of Labor\nStatistics Bulletin No. 263 (Misc. Ser.) p. 11. See also United States Department of Labor, Wage and\nHour Division, Data on Pay Roll Deductions, Union Manufacturing Company, Union Point, Georgia,\nJune 1941; Rhyne, Some Southern Cotton Mill Workers and Their Villages, Chapel Hill, 1930 (Study\ncompleted under the direction of the Institute for Research in Social Science at the University of\nNorth Carolina); Comment, Urban Redevelopment, 54 Yale L.J. 116.\nMR. JUSTICE FRANKFURTER, CONCURRING.\n* * * * A company-owned town gives rise to a network of property relations. As to these, the judicial\norgan of a State has the final say. But a company-owned town is a town. In its community aspects\nit does not differ from other towns. These community aspects are decisive in adjusting the relations\nnow before us, and more particularly in adjudicating the clash of freedoms which the Bill of Rights\nwas designed to resolve\xe2\x80\x94the freedom of the community to regulate its life and the freedom of the\nindividual to exercise his religion and to disseminate his ideas. Title to property as defined by State\nlaw controls property relations; it cannot control issues of civil liberties which arise precisely because\na company town is a town as well as a congeries of property relations. And similarly the technical\ndistinctions on which a finding of \xe2\x80\x9ctrespass\xe2\x80\x9d so often depends are too tenuous to control decision\nregarding the scope of the vital liberties guaranteed by the Constitution. * * * *\nMR. JUSTICE REED, DISSENTING.\n* * * * This is the first case to extend by law the privilege of religious exercises beyond public places\nor to private places without the assent of the owner.\n\n10 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cAs the rule now announced permits this intrusion, without possibility of protection of the property by\nlaw, and apparently is equally applicable to the freedom of speech and the press, it seems appropriate\nto express a dissent to this, to us, novel Constitutional doctrine. Of course, such principle may\nsubsequently be restricted by this Court to the precise facts of this case\xe2\x80\x94that is to private property\nin a company town where the owner for his own advantage has permitted a restricted public use by\nhis licensees and invitees. Such distinctions are of degree and require new arbitrary lines, judicially\ndrawn, instead of those hitherto established by legislation and precedent. While the power of this\nCourt, as the interpreter of the Constitution to determine what use of real property by the owner\nmakes that property subject, at will, to the reasonable practice of religious exercises by strangers,\ncannot be doubted, we find nothing in the principles of the First Amendment, adopted now into the\nFourteenth, which justifies their application to the facts of this case. * * * *\nTHE CHIEF JUSTICE AND MR. JUSTICE BURTON JOIN IN THIS DISSENT.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=31#h5p-38\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=31#h5p-39\n\nShelley v. Kraemer\n334 U.S. 1 (1948)\n\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 11\n\n\x0cVINSON, C.J., DELIVERED THE OPINION OF THE COURT IN WHICH BLACK, FRANKFURTER, DOUGLAS, MURPHY AND\nBURTON, JJ., JOINED. REED, JACKSON AND RUTLEDGE, JJ., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE\nCASE.\nCHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE COURT.\nThese cases present for our consideration questions relating to the validity of court enforcement\nof private agreements, generally described as restrictive covenants, which have as their purpose the\nexclusion of persons of designated race or color from the ownership or occupancy of real property.\nBasic constitutional issues of obvious importance have been raised.\nThe first of these cases comes to this Court on certiorari to the Supreme Court of Missouri. On\nFebruary 16, 1911, thirty out of a total of thirty-nine owners of property fronting both sides of Labadie\nAvenue between Taylor Avenue and Cora Avenue in the city of St. Louis, signed an agreement, which\nwas subsequently recorded, providing in part:\n\xe2\x80\x9c. . . the said property is hereby restricted to the use and occupancy for the term of Fifty (50)\nyears from this date, so that it shall be a condition all the time and whether recited and\nreferred to as [sic] not in subsequent conveyances and shall attach to the land as a condition\nprecedent to the sale of the same, that hereafter no part of said property or any portion\nthereof shall be, for said term of Fifty-years, occupied by any person not of the Caucasian race,\nit being intended hereby to restrict the use of said property for said period of time against the\noccupancy as owners or tenants of any portion of said property for resident or other purpose\nby people of the Negro or Mongolian Race.\xe2\x80\x9d\nThe entire district described in the agreement included fifty-seven parcels of land. The thirty owners\nwho signed the agreement held title to forty-seven parcels, including the particular parcel involved\nin this case. At the time the agreement was signed, five of the parcels in the district were owned by\nNegroes. One of those had been occupied by Negro families since 1882, nearly thirty years before the\nrestrictive agreement was executed. The trial court found that owners of seven out of nine homes\non the south side of Labadie Avenue, within the restricted district and \xe2\x80\x9cin the immediate vicinity\xe2\x80\x9d of\nthe premises in question, had failed to sign the restrictive agreement in 1911. At the time this action\nwas brought, four of the premises were occupied by Negroes, and had been so occupied for periods\nranging from twenty-three to sixty-three years. A fifth parcel had been occupied by Negroes until a\nyear before this suit was instituted.\nOn August 11, 1945, pursuant to a contract of sale, petitioners Shelley, who are Negroes, for valuable\nconsideration received from one Fitzgerald a warranty deed to the parcel in question. The trial\ncourt found that petitioners had no actual knowledge of the restrictive agreement at the time of the\npurchase.\nOn October 9, 1945, respondents, as owners of other property subject to the terms of the restrictive\ncovenant, brought suit in the Circuit Court of the city of St. Louis praying that petitioners Shelley be\nrestrained from taking possession of the property and that judgment be entered divesting title out of\npetitioners Shelley and revesting title in the immediate grantor or in such other person as the court\n12 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cshould direct. The trial court denied the requested relief on the ground that the restrictive agreement,\nupon which respondents based their action, had never become final and complete because it was\nthe intention of the parties to that agreement that it was not to become effective until signed by all\nproperty owners in the district, and signatures of all the owners had never been obtained.\nThe Supreme Court of Missouri sitting en banc reversed and directed the trial court to grant the\nrelief for which respondents had prayed. That court held the agreement effective and concluded that\nenforcement of its provisions violated no rights guaranteed to petitioners by the Federal Constitution.\nAt the time the court rendered its decision, petitioners were occupying the property in question.\nThe second of the cases under consideration comes to this Court from the Supreme Court of\nMichigan. * * * *\n\nI\nWhether the equal protection clause of the Fourteenth Amendment inhibits judicial enforcement by\nstate courts of restrictive covenants based on race or color is a question which this Court has not\nheretofore been called upon to consider. * * * *\n{But it is} clear that restrictions on the right of occupancy of the sort sought to be created by the\nprivate agreements in these cases could not be squared with the requirements of the Fourteenth\nAmendment if imposed by state statute or local ordinance. We do not understand respondents to urge\nthe contrary. * * * *\n{But} Here the particular patterns of discrimination and the areas in which the restrictions are to\noperate, are determined, in the first instance, by the terms of agreements among private individuals.\nParticipation of the State consists in the enforcement of the restrictions so defined. The crucial issue\nwith which we are here confronted is whether this distinction removes these cases from the operation\nof the prohibitory provisions of the Fourteenth Amendment.\nSince the decision of this Court in the Civil Rights Cases (1883), the principle has become firmly\nembedded in our constitutional law that the action inhibited by the first section of the Fourteenth\nAmendment is only such action as may fairly be said to be that of the States. That Amendment erects\nno shield against merely private conduct, however discriminatory or wrongful.\nWe conclude, therefore, that the restrictive agreements standing alone cannot be regarded as a\nviolation of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the\npurposes of those agreements are effectuated by voluntary adherence to their terms, it would appear\nclear that there has been no action by the state and the provisions of the Amendment have not been\nviolated.\nBut here there was more. These are cases in which the purposes of the agreements were secured only\nby judicial enforcement by state courts of the restrictive terms of the agreements. The respondents\nurge that judicial enforcement of private agreements does not amount to state action; or, in any event,\nthe participation of the State is so attenuated in character as not to amount to state action within the\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 13\n\n\x0cmeaning of the Fourteenth Amendment. Finally, it is suggested, even if the States in these cases may\nbe deemed to have acted in the constitutional sense, their action did not deprive petitioners of rights\nguaranteed by the Fourteenth Amendment. We move to a consideration of these matters.\n\nII\n* * * * [T]he examples of state judicial action which have been held by this Court to violate the\nAmendment\xe2\x80\x99s commands are not restricted to situations in which the judicial proceedings were found\nin some manner to be procedurally unfair. It has been recognized that the action of state courts in\nenforcing a substantive common-law rule formulated by those courts, may result in the denial of\nrights guaranteed by the Fourteenth Amendment, even though the judicial proceedings in such cases\nmay have been in complete accord with the most rigorous conceptions of procedural due process.\n****\nThe short of the matter is that from the time of the adoption of the Fourteenth Amendment until\nthe present, it has been the consistent ruling of this Court that the action of the States to which the\nAmendment has reference, includes action of state courts and state judicial officials. * * * * [I]t has\nnever been suggested that state court action is immunized from the operation of those provisions\nsimply because the act is that of the judicial branch of the state government.\n\nIII\nAgainst this background of judicial construction, extending over a period of some three-quarters of\na century, we are called upon to consider whether enforcement by state courts of the restrictive\nagreements in these cases may be deemed to be the acts of those States; and, if so, whether that action\nhas denied these petitioners the equal protection of the laws which the Amendment was intended to\ninsure.\nWe have no doubt that there has been state action in these cases in the full and complete sense\nof the phrase. The undisputed facts disclose that petitioners were willing purchasers of properties\nupon which they desired to establish homes. The owners of the properties were willing sellers; and\ncontracts of sale were accordingly consummated. It is clear that but for the active intervention of the\nstate courts, supported by the full panoply of state power, petitioners would have been free to occupy\nthe properties in question without restraint.\nThese are not cases, as has been suggested, in which the States have merely abstained from action,\nleaving private individuals free to impose such discriminations as they see fit. Rather, these are cases\nin which the States have made available to such individuals the full coercive power of government to\ndeny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises\nwhich petitioners are willing and financially able to acquire and which the grantors are willing to sell.\nThe difference between judicial enforcement and nonenforcement of the restrictive covenants is the\n\n14 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cdifference to petitioners between being denied rights of property available to other members of the\ncommunity and being accorded full enjoyment of those rights on an equal footing.\nThe enforcement of the restrictive agreements by the state courts in these cases was directed\npursuant to the common-law policy of the States as formulated by those courts in earlier decisions.\nIn the Missouri case, enforcement of the covenant was directed in the first instance by the highest\ncourt of the State after the trial court had determined the agreement to be invalid for want of\nthe requisite number of signatures. In the Michigan case, the order of enforcement by the trial\ncourt was affirmed by the highest state court. The judicial action in each case bears the clear\nand unmistakable imprimatur of the State. We have noted that previous decisions of this Court\nhave established the proposition that judicial action is not immunized from the operation of the\nFourteenth Amendment simply because it is taken pursuant to the state\xe2\x80\x99s common-law policy. Nor is\nthe Amendment ineffective simply because the particular pattern of discrimination, which the State\nhas enforced, was defined initially by the terms of a private agreement.* * * *\nRespondents urge, however, that since the state courts stand ready to enforce restrictive covenants\nexcluding white persons from the ownership or occupancy of property covered by such agreements,\nenforcement of covenants excluding colored persons may not be deemed a denial of equal protection\nof the laws to the colored persons who are thereby affected. This contention does not bear scrutiny.\nThe parties have directed our attention to no case in which a court, state or federal, has been called\nupon to enforce a covenant excluding members of the white majority from ownership or occupancy\nof real property on grounds of race or color. But there are more fundamental considerations. The\nrights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the\nindividual. The rights established are personal rights. It is, therefore, no answer to these petitioners\nto say that the courts may also be induced to deny white persons rights of ownership and occupancy\non grounds of race or color. Equal protection of the laws is not achieved through indiscriminate\nimposition of inequalities.\nNor do we find merit in the suggestion that property owners who are parties to these agreements\nare denied equal protection of the laws if denied access to the courts to enforce the terms of\nrestrictive covenants and to assert property rights which the state courts have held to be created\nby such agreements. The Constitution confers upon no individual the right to demand action by the\nState which results in the denial of equal protection of the laws to other individuals. And it would\nappear beyond question that the power of the State to create and enforce property interests must be\nexercised within the boundaries defined by the Fourteenth Amendment. Cf. Marsh.* * * *\nReversed.\nMR. JUSTICE REED, MR. JUSTICE JACKSON, AND MR. JUSTICE RUTLEDGE TOOK NO PART IN THE CONSIDERATION OR\nDECISION OF THESE CASES.\n\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 15\n\n\x0cCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=31#h5p-40\n\nNotes\n1. Did you notice how the opinions in Marsh and Shelley did or did not cite the Civil Rights Cases?\n2. How do notions of \xe2\x80\x9cprivate property\xe2\x80\x9d appear in the Court\xe2\x80\x99s opinions in Marsh and Shelley?\n3. Understanding political, social, and economic movements and trends \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x9chistory\xe2\x80\x9d \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x93 occurring\nat the time of a Court\xe2\x80\x99s opinion can be a useful adjunct to understanding (and even memorizing)\ndoctrine. Are there aspects of history that you can discern from these cases? What particular language\nfrom the opinions support your opinions?\n\nNote: State Action in the Civil Rights Era: Burton & Irvis\nState action doctrine was an important issue in \xe2\x80\x9ccivil rights\xe2\x80\x9d struggles, with the courts deciding many\ncases determining whether the Fourteenth Amendment\xe2\x80\x99s Equal Protection Clause was applicable to\ninstitutions which practiced racial segregation. Two cases are especially important and illustrate the\nCourt\xe2\x80\x99s changing views: Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) and Moose Lodge\nv. Irvis, 407 U.S. 163 (1972). Both involved prominent Black men challenging their racially-motivated\nexclusion from spaces.\nBurton involved the Eagle Coffee Shoppe, Inc., which the Court described as \xe2\x80\x9ca restaurant located\nwithin an off-street automobile parking building in Wilmington, Delaware.\xe2\x80\x9d The building was \xe2\x80\x9cowned\nand operated by the Wilmington Parking Authority, an agency of the State of Delaware, and the\nrestaurant is the Authority\xe2\x80\x99s lessee.\xe2\x80\x9d The Delaware Supreme Court held that the coffee shoppe, in\nrefusing service to William Burton (the original plaintiff), was acting in \xe2\x80\x9ca purely private capacity\xe2\x80\x9d\nunder its lease and therefore there was no state action within the contemplation of the prohibitions\ncontained in that Amendment. The United States Supreme Court reversed.\nThe Court stated that \xe2\x80\x9cto fashion and apply a precise formula for recognition of state responsibility\nunder the Equal Protection Clause is an \xe2\x80\x98impossible task\xe2\x80\x99 which \xe2\x80\x98This Court has never attempted.\xe2\x80\x99\xe2\x80\x9d\nInstead, it is \xe2\x80\x9cOnly by sifting facts and weighing circumstances can the nonobvious involvement of the\nState in private conduct be attributed its true significance.\xe2\x80\x9d\nThe Court then proceeded with its task of \xe2\x80\x9csifting facts and weighing circumstances,\xe2\x80\x9d stating:\n\n16 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cThe land and building were publicly owned. As an entity, the building was dedicated to \xe2\x80\x9cpublic\nuses\xe2\x80\x9d in performance of the Authority\xe2\x80\x99s \xe2\x80\x9cessential governmental functions\xe2\x80\x9d [by Delaware\nstatute]. The costs of land acquisition, construction, and maintenance are defrayed entirely\nfrom donations by the City of Wilmington, from loans and revenue bonds and from the\nproceeds of rentals and parking services out of which the loans and bonds were payable.\nAssuming that the distinction would be significant, the commercially leased areas were not\nsurplus state property, but constituted a physically and financially integral and, indeed,\nindispensable part of the State\xe2\x80\x99s plan to operate its project as a self-sustaining unit. Upkeep\nand maintenance of the building, including necessary repairs, were responsibilities of the\nAuthority and were payable out of public funds. It cannot be doubted that the peculiar\nrelationship of the restaurant to the parking facility in which it is located confers on each\nan incidental variety of mutual benefits. Guests of the restaurant are afforded a convenient\nplace to park their automobiles, even if they cannot enter the restaurant directly from the\nparking area. Similarly, its convenience for diners may well provide additional demand for\nthe Authority\xe2\x80\x99s parking facilities. Should any improvements effected in the leasehold by Eagle\nbecome part of the realty, there is no possibility of increased taxes being passed on to it since\nthe fee is held by a tax-exempt government agency. Neither can it be ignored, especially in\nview of Eagle\xe2\x80\x99s affirmative allegation that for it to serve Negroes would injure its business, that\nprofits earned by discrimination not only contribute to, but also are indispensable elements\nin, the financial success of a governmental agency.\nAddition of all these activities, obligations and responsibilities of the Authority, the benefits\nmutually conferred, together with the obvious fact that the restaurant is operated as an\nintegral part of a public building devoted to a public parking service, indicates that degree of\nstate participation and involvement in discriminatory action which it was the design of the\nFourteenth Amendment to condemn. It is irony amounting to grave injustice that in one part\nof a single building, erected and maintained with public funds by an agency of the State to\nserve a public purpose, all persons have equal rights, while in another portion, also serving\nthe public, a Negro is a second-class citizen, offensive because of his race, without rights and\nunentitled to service, but at the same time fully enjoys equal access to nearby restaurants in\nwholly privately owned buildings.\nThe Court found there was state action, thus subjecting the defendant to the requirements of the\nFourteenth Amendment\xe2\x80\x99s Equal Protection Clause.\nDissenting, Justice Harlan, joined by another Justice, wrote that the \xe2\x80\x9cCourt\xe2\x80\x99s opinion, by a process of\nfirst undiscriminatingly throwing together various factual bits and pieces and then undermining the\nresulting structure by an equally vague disclaimer, seems to me to leave completely at sea just what it\nis in this record that satisfies the requirement of \xe2\x80\x98state action.\xe2\x80\x99\xe2\x80\x9d\nIn an opinion rendered a little more than a decade later, the United States Supreme Court\ndistinguished Burton in Moose Lodge v. Irvis. In Irvis, the Court found that a local Moose Lodge in\nHarrisburg, Pennsylvania was not a state actor, and thus its refusal to serve Irvis alcohol was not\n\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 17\n\n\x0csubject to the Fourteenth Amendment\xe2\x80\x99s Equal Protection Clause. The opinion for the Court by Justice\nRehnquist described Moose Lodge as:\na private club in the ordinary meaning of that term. It is a local chapter of a national fraternal\norganization having well-defined requirements for membership. It conducts all of its activities\nin a building that is owned by it. It is not publicly funded. Only members and guests are\npermitted in any lodge of the order; one may become a guest only by invitation of a member\nor upon invitation of the house committee.\nThe Court provided a review of state action doctrine:\nIn 1883, this Court in the Civil Rights Cases, set forth the essential dichotomy between\ndiscriminatory action by the State, which is prohibited by the Equal Protection Clause, and\nprivate conduct, \xe2\x80\x9chowever discriminatory or wrongful,\xe2\x80\x9d against which that clause \xe2\x80\x9cerects no\nshield,\xe2\x80\x9d Shelley v. Kraemer (1948). That dichotomy has been subsequently reaffirmed in Shelley\nv. Kraemer and in Burton v. Wilmington Parking Authority (1961).\nWhile the principle is easily stated, the question of whether particular discriminatory conduct\nis private, on the one hand, or amounts to \xe2\x80\x9cstate action,\xe2\x80\x9d on the other hand, frequently admits\nof no easy answer. \xe2\x80\x9cOnly by sifting facts and weighing circumstances can the non-obvious\ninvolvement of the State in private conduct be attributed its true significance.\xe2\x80\x9d Burton v.\nWilmington Parking Authority.\nOur cases make clear that the impetus for the forbidden discrimination need not originate\nwith the State if it is state action that enforces privately originated discrimination. Shelley.\nThe Court held in Burton that a private restaurant owner who refused service because of a\ncustomer\xe2\x80\x99s race violated the Fourteenth Amendment, where the restaurant was located in a\nbuilding owned by a state created parking authority and leased from the authority. The Court,\nafter a comprehensive review of the relationship between the lessee and the parking authority\nconcluded that the latter had \xe2\x80\x98so far insinuated itself into a position of interdependence with\nEagle (the restaurant owner) that it must be recognized as a joint participant in the challenged\nactivity, which, on that account, cannot be considered to have been so \xe2\x80\x98purely private\xe2\x80\x99 as to fall\nwithout the scope of the Fourteenth Amendment.\nThe Court has never held, of course, that discrimination by an otherwise private entity would\nbe violative of the Equal Protection Clause if the private entity receives any sort of benefit\nor service at all from the State, or if it is subject to state regulation in any degree whatever.\nSince state-furnished services include such necessities of life as electricity, water, and police\nand fire protection, such a holding would utterly emasculate the distinction between private\nas distinguished from state conduct. * * * * Our holdings indicate that where the impetus for\nthe discrimination is private, the State must have \xe2\x80\x9csignificantly involved itself with invidious\ndiscriminations,\xe2\x80\x9d in order for the discriminatory action to fall within the ambit of the\nconstitutional prohibition.\nOur prior decisions dealing with discriminatory refusal of service in public eating places are\n18 | Liberty, Equality, and Due Process: Third Edition\n\n\x0csignificantly different factually from the case now before us. Peterson v. City of Greenville\n(1963) dealt with the trespass prosecution of persons who \xe2\x80\x98sat in\xe2\x80\x99 at a restaurant to protest\nits refusal of service to Negroes. There the Court held that although the ostensible initiative\nfor the trespass prosecution came from the proprietor, the existence of a local ordinance\nrequiring segregation of races in such places was tantamount to the State having \xe2\x80\x9ccommanded\na particular result.\xe2\x80\x9d With one exception, there is no suggestion in this record that the\nPennsylvania statutes and regulations governing the sale of liquor are intended either overtly\nor covertly to encourage discrimination.\nThe exception in Irvis to which the Court referred was this: the Pennsylvania state Liquor Control\nBoard adopted a regulation that affirmatively required that \xe2\x80\x9c(e)very club licensee shall adhere to all\nof the provisions\xe2\x80\x9d of the national organization\xe2\x80\x99s \xe2\x80\x9cConstitution and By-Laws.\xe2\x80\x9d In other words, a local\nMoose Lodge club had to adhere to the rules of the national Moose Lodge organization. It was a rule\nof the national Moose Lodge that only white men could be members and only white people could be\nguests.\nThe majority stated this was not sufficient but stated that \xe2\x80\x9cShelley makes it clear that the application\nof state sanctions to enforce such a rule would violate the Fourteenth Amendment.\xe2\x80\x9d So the Court ruled\nthat Irvis was entitled to a decree enjoining the enforcement of the Liquor Board regulations \xe2\x80\x9cinsofar\nas that regulation requires compliance by Moose Lodge with provisions of its constitution and bylaws\ncontaining racially discriminatory provisions,\xe2\x80\x9d but that Irvis was \xe2\x80\x9centitled to no more.\xe2\x80\x9d\nDissenting, Justice Douglas, joined by Justice Marshall, argued that liquor licenses in Pennsylvania,\n\xe2\x80\x9cunlike driver\xe2\x80\x99s licenses, or marriage licenses, are not freely available to those who meet racially\nneutral qualifications,\xe2\x80\x9d and that under the \xe2\x80\x9ccomplex quota system,\xe2\x80\x9d the quota for Harrisburg, where\nMoose Lodge No. 107 was located, has been full for many years:\nThis state-enforced scarcity of licenses restricts the ability of Blacks to obtain liquor, for\nliquor is commercially available only at private clubs for a significant portion of each week.\nAccess by Blacks to places that serve liquor is further limited by the fact that the state quota\nis filled. A group desiring to form a nondiscriminatory club which would serve blacks must\npurchase a license held by an existing club, which can exact a monopoly price for the transfer.\nThe availability of such a license is speculative at best, however, for, as Moose Lodge itself\nconcedes, without a liquor license a fraternal organization would be hard pressed to survive.\nThus, the State of Pennsylvania is putting the weight of its liquor license, concededly a valued\nand important adjunct to a private club, behind racial discrimination. * * * *\n\nBlum v. Yaretsky\n457 U.S. 991 (1982)\nREHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C. J., AND BLACKMUN, POWELL, STEVENS,\nAND O\xe2\x80\x99CONNOR, JJ., JOINED. WHITE, J., FILED AN OPINION CONCURRING IN THE JUDGMENT. BRENNAN, J., FILED A\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 19\n\n\x0cDISSENTING OPINION, IN WHICH MARSHALL, J., JOINED.\n\nJUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT.\nRespondents represent a class of Medicaid patients challenging decisions by the nursing homes in\nwhich they reside to discharge or transfer patients without notice or an opportunity for a hearing.\nThe question is whether the State may be held responsible for those decisions so as to subject them\nto the strictures of the Fourteenth Amendment.\n\nI\nCongress established the Medicaid program in 1965 as Title XIX of the Social Security Act, 42 U.S.C.\n\xc2\xa7 1396 et seq., (1976 ed. and Supp.IV), to provide federal financial assistance to States that choose to\nreimburse certain medical costs incurred by the poor. As a participating State, New York provides\nMedicaid assistance to eligible persons who receive care in private nursing homes, which are\ndesignated as either \xe2\x80\x9cskilled nursing facilities\xe2\x80\x9d (SNF\xe2\x80\x99s) or \xe2\x80\x9chealth related facilities\xe2\x80\x9d (HRF\xe2\x80\x99s). The latter\nprovide less extensive, and generally less expensive, medical care than the former. Nursing homes\nchosen by Medicaid patients are directly reimbursed by the State for the reasonable cost of health\ncare services, N.Y.Soc.Serv.Law \xc2\xa7 367\xe2\x80\x93a.1 (McKinney Supp.1981).\nAn individual must meet two conditions to obtain Medicaid assistance. He must satisfy eligibility\nstandards defined in terms of income or resources and he must seek medically necessary services.\nSee 42 U.S.C. \xc2\xa7 1396. To assure that the latter condition is satisfied, federal regulations require\neach nursing home to establish a utilization review committee (URC) of physicians whose functions\ninclude periodically assessing whether each patient is receiving the appropriate level of care, and thus\nwhether the patient\xe2\x80\x99s continued stay in the facility is justified. If the URC determines that the patient\nshould be discharged or transferred to a different level of care, either more or less intensive, it must\nnotify the state agency responsible for administering Medicaid assistance.\nAt the time their complaint was filed, respondents Yaretsky and Cuevas were patients in the American\nNursing Home, an SNF located in New York City. Both were recipients of assistance under the\nMedicaid program. In December 1975 the nursing home\xe2\x80\x99s URC decided that respondents did not\nneed the care they were receiving and should be transferred to a lower level of care in an HRF.\nNew York City officials, who were then responsible for administering the Medicaid program in the\ncity, were notified of this decision and prepared to reduce or terminate payments to the nursing\nhome for respondents\xe2\x80\x99 care. Following administrative hearings, state social service officials affirmed\nthe decision to discontinue benefits unless respondents accepted a transfer to an HRF providing a\nreduced level of care.\nRespondents then commenced this suit, acting individually and on behalf of a class of Medicaideligible residents of New York nursing homes. Named as defendants were the Commissioners of\nthe New York Department of Social Services and the Department of Health. Respondents alleged\nin part that the defendants had not afforded them [the constitutionally required] notice either of\n20 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cURC decisions and the reasons supporting them or of their [constitutional] right to an administrative\nhearing to challenge those decisions. Respondents maintained that these actions violated their rights\nunder state and federal law and under the Due Process Clause of the Fourteenth Amendment. They\nsought injunctive relief and damages.\nIn January 1978 the District Court certified a class and issued a preliminary injunction, restraining\nthe defendants from reducing or terminating Medicaid benefits without timely written notice to the\npatients, provided by state or local officials, of the reasons for the URC decision, the defendants\xe2\x80\x99\nproposed action, and the patients\xe2\x80\x99 right to an evidentiary hearing and continued benefits pending\nadministrative resolution of the claim. The court\xe2\x80\x99s accompanying opinion relied primarily on existing\nfederal and state regulations.\n* * * * Respondents asserted that [any patient] transfers deprived patients of interests protected by\nthe Fourteenth Amendment and were the product of \xe2\x80\x9cstate action.\xe2\x80\x9d\nIn October 1979 the District Court approved a consent judgment * * * * [but the consent judgment]\nleft several issues of law to be decided by the District Court. The most important, for our purposes,\nwas \xe2\x80\x9cwhether there is state action and a constitutional right to a pre-transfer evidentiary hearing in\na patient transfer * * * initiated by the facility or its agents.\xe2\x80\x9d Ultimately, the District Court answered\nthat question in respondents\xe2\x80\x99 favor, although without elaborating its reasons. The court permanently\nenjoined petitioners, as well as all SNF\xe2\x80\x99s and HRF\xe2\x80\x99s in the State, from permitting or ordering the\ndischarge of class members, or their transfer to a different level of care, without providing advance\nwritten notice and an evidentiary hearing on \xe2\x80\x9cthe validity and appropriateness of the proposed\naction.\xe2\x80\x9d\nThe Court of Appeals for the Second Circuit affirmed that portion of the District Court\xe2\x80\x99s judgment we\nhave described above. The court held that * * * all discharges and transfers initiated by the nursing\nhomes or attending physicians, \xe2\x80\x9cinvolve state action affecting constitutionally protected property\nand liberty interests.\xe2\x80\x9d The court premised its identification of state action on the fact that state\nauthorities \xe2\x80\x9cresponded\xe2\x80\x9d to the challenged transfers by adjusting the patients\xe2\x80\x99 Medicaid benefits. Citing\nour opinion in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974), the court viewed this\nresponse as establishing a sufficiently close \xe2\x80\x9cnexus\xe2\x80\x9d between the State and either the nursing homes\nor the URC\xe2\x80\x99s to justify treating their actions as those of the State itself.\nWe granted certiorari to consider the Court of Appeals\xe2\x80\x99 conclusions about the nature of state action.\nWe now reverse its judgment.\n\nII\n[The Court considered whether the respondents had \xe2\x80\x9cstanding\xe2\x80\x9d and had demonstrated that they were\npersonally injured. The Court held that they did.]\nWe turn now to the \xe2\x80\x9cstate action\xe2\x80\x9d question presented by petitioners.\n\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 21\n\n\x0cIII\nThe Fourteenth Amendment of the Constitution provides in part that \xe2\x80\x9c[n]o State shall . . . deprive any\nperson of life, liberty, or property without due process of law.\xe2\x80\x9d Since this Court\xe2\x80\x99s decision in the Civil\nRights Cases, 109 U.S. 3 (1883), \xe2\x80\x9cthe principle has become firmly embedded in our constitutional law\nthat the action inhibited by the first section of the Fourteenth Amendment is only such action as may\nfairly be said to be that of the States.\xe2\x80\x9d Shelley v. Kraemer, 334 U.S. 1, 13 (1948). \xe2\x80\x9cThat Amendment erects\nno shield against merely private conduct, however discriminatory or wrongful.\xe2\x80\x9d Shelley. See Jackson v.\nMetropolitan Edison Co., 419 U.S. 345 (1974); Adickes v. S. H. Kress & Co., 398 U.S. 144, (1970).\nFaithful adherence to the \xe2\x80\x9cstate action\xe2\x80\x9d requirement of the Fourteenth Amendment requires careful\nattention to the gravamen of the plaintiff\xe2\x80\x99s complaint. In this case, respondents objected to the\ninvoluntary discharge or transfer of Medicaid patients by their nursing homes without certain\nprocedural safeguards. They have named as defendants state officials responsible for administering\nthe Medicaid program in New York. These officials are also responsible for regulating nursing homes\nin the State, including those in which respondents were receiving care. But respondents are not\nchallenging particular state regulations or procedures, and their arguments concede that the decision\nto discharge or transfer a patient originates not with state officials, but with nursing homes that\nare privately owned and operated. Their lawsuit, therefore, seeks to hold state officials liable for the\nactions of private parties, and the injunctive relief they have obtained requires the State to adopt\nregulations that will prohibit the private conduct of which they complain.\n\nA\nThis case is obviously different from those cases in which the defendant is a private party and the\nquestion is whether his conduct has sufficiently received the imprimatur of the State so as to make it\n\xe2\x80\x9cstate\xe2\x80\x9d action for purposes of the Fourteenth Amendment. See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S.\n149 (1978); Jackson v. Metropolitan Edison Co. (1974); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, (1972). It\nalso differs from other \xe2\x80\x9cstate action\xe2\x80\x9d cases in which the challenged conduct consists of enforcement\nof state laws or regulations by state officials who are themselves parties in the lawsuit; in such cases\nthe question typically is whether the private motives which triggered the enforcement of those laws\ncan fairly be attributed to the State. See, e.g., Peterson v. City of Greenville, 373 U.S. 244 (1963). But both\nthese types of cases shed light upon the analysis necessary to resolve the present case.\nFirst, although it is apparent that nursing homes in New York are extensively regulated, \xe2\x80\x9c[t]he mere\nfact that a business is subject to state regulation does not by itself convert its action into that of the\nState for purposes of the Fourteenth Amendment.\xe2\x80\x9d Jackson v. Metropolitan Edison Co., 419 U.S., at 350.\nThe complaining party must also show that \xe2\x80\x9cthere is a sufficiently close nexus between the State and\nthe challenged action of the regulated entity so that the action of the latter may be fairly treated as\nthat of the State itself.\xe2\x80\x9d Id., at 351. The purpose of this requirement is to assure that constitutional\nstandards are invoked only when it can be said that the State is responsible for the specific conduct of\nwhich the plaintiff complains. The importance of this assurance is evident when, as in this case, the\ncomplaining party seeks to hold the State liable for the actions of private parties.\n22 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cSecond, although the factual setting of each case will be significant, our precedents indicate that a\nState normally can be held responsible for a private decision only when it has exercised coercive\npower or has provided such significant encouragement, either overt or covert, that the choice must\nin law be deemed to be that of the State. Flagg Bros., Inc. v. Brooks, 436 U.S. at 166; Jackson v.\nMetropolitan Edison Co., 419 U.S. at 357; Moose Lodge No. 107 v. Irvis, 407 U.S. at 173; Adickes v. S. H.\nKress & Co., 398 U.S. at 170. Mere approval of or acquiescence in the initiatives of a private party\nis not sufficient to justify holding the State responsible for those initiatives under the terms of the\nFourteenth Amendment. See Flagg Bros., 436 U.S. at 164\xe2\x80\x93165; Jackson v. Metropolitan Edison Co., 419\nU.S. at 357.\nThird, the required nexus may be present if the private entity has exercised powers that are\n\xe2\x80\x9ctraditionally the exclusive prerogative of the State.\xe2\x80\x9d Jackson v. Metropolitan Edison Co.,419 U.S. at 353;\nFlagg Bros., Inc. v. Brooks, 436 U.S. at 157\xe2\x80\x93161.\n\nB\nAnalyzed in the light of these principles, the Court of Appeals\xe2\x80\x99 finding of state action cannot stand. The\ncourt reasoned that state action was present in the discharge or transfer decisions implemented by\nthe nursing homes because the State responded to those decisions by adjusting the patient\xe2\x80\x99s Medicaid\nbenefits. Respondents, however, do not challenge the adjustment of benefits, but the discharge or\ntransfer of patients to lower levels of care without adequate notice or hearings. That the State\nresponds to such actions by adjusting benefits does not render it responsible for those actions.\nThe decisions about which respondents complain are made by physicians and nursing home\nadministrators, all of whom are concededly private parties. There is no suggestion that those\ndecisions were influenced in any degree by the State\xe2\x80\x99s obligation to adjust benefits in conformity with\nchanges in the cost of medically necessary care.\nRespondents do not rest on the Court of Appeals\xe2\x80\x99 rationale, however. They argue that the State\n\xe2\x80\x9caffirmatively commands\xe2\x80\x9d the summary discharge or transfer of Medicaid patients who are thought\nto be inappropriately placed in their nursing facilities. Were this characterization accurate, we would\nhave a different question before us. However, our review of the statutes and regulations identified by\nrespondents does not support respondents\xe2\x80\x99 characterization of them.\nAs our earlier summary of the Medicaid program explained, a patient must meet two essential\nconditions in order to obtain financial assistance. He must satisfy eligibility criteria defined in terms\nof income and resources and he must seek medically necessary services. To assure that nursing\nhome services are medically necessary, federal law requires that a physician so certify at the time\nthe Medicaid patient is admitted and periodically thereafter. New York requires that the physician\ncomplete a \xe2\x80\x9clong term care placement form\xe2\x80\x9d devised by the Department of Health, called the DMS-1.\nA completed form provides, inter alia, a numerical score corresponding to the physician\xe2\x80\x99s assessment\nof the patient\xe2\x80\x99s mental and physical health. As petitioners note, however, the physicians, and not the\nforms, make the decision about whether the patient\xe2\x80\x99s care is medically necessary. A physician can\n\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 23\n\n\x0cauthorize a patient\xe2\x80\x99s admission to a nursing facility despite a \xe2\x80\x9clow\xe2\x80\x9d score on the form. We cannot say\nthat the State, by requiring completion of a form, is responsible for the physician\xe2\x80\x99s decision.\nIn any case, respondents\xe2\x80\x99 complaint is about nursing home decisions to discharge or transfer, not to\nadmit, Medicaid patients. But we are not satisfied that the State is responsible for those decisions\neither. The regulations cited by respondents require SNF\xe2\x80\x99s and HRF\xe2\x80\x99s \xe2\x80\x9cto make all efforts possible\nto transfer patients to the appropriate level of care or home as indicated by the patient\xe2\x80\x99s medical\ncondition or needs.\xe2\x80\x9d The nursing homes are required to complete patient care assessment forms\ndesigned by the State and \xe2\x80\x9cprovide the receiving facility or provider with a current copy of same at\nthe time of discharge to an alternate level of care facility or home.\xe2\x80\x9d\nThese regulations do not require the nursing homes to rely on the forms in making discharge or\ntransfer decisions, nor do they demonstrate that the State is responsible for the decision to discharge\nor transfer particular patients. Those decisions ultimately turn on medical judgments made by private\nparties according to professional standards that are not established by the State. This case, therefore,\nis not unlike Polk County v. Dodson, 454 U.S. 312 (1981), in which the question was whether a public\ndefender acts \xe2\x80\x9cunder color of\xe2\x80\x9d state law * * * * when representing an indigent defendant in a state\ncriminal proceeding. Although the public defender was employed by the State and appointed by\nthe State to represent the respondent, we concluded that \xe2\x80\x9c[t]his assignment entailed functions and\nobligations in no way dependent on state authority.\xe2\x80\x9d The decisions made by the public defender in\nthe course of representing his client were framed in accordance with professional canons of ethics,\nrather than dictated by any rule of conduct imposed by the State. The same is true of nursing home\ndecisions to discharge or transfer particular patients because the care they are receiving is medically\ninappropriate.\nRespondents next point to regulations which, they say, impose a range of penalties on nursing homes\nthat fail to discharge or transfer patients whose continued stay is inappropriate. One regulation\nexcludes from participation in the Medicaid program health care providers who \xe2\x80\x9c[f]urnished items or\nservices that are substantially in excess of the beneficiary\xe2\x80\x99s needs.\xe2\x80\x9d The State is also authorized to fine\nhealth care providers who violate applicable regulations. As we have previously concluded, however,\nthose regulations themselves do not dictate the decision to discharge or transfer in a particular case.\nConsequently, penalties imposed for violating the regulations add nothing to respondents\xe2\x80\x99 claim of\nstate action.\nAs an alternative position, respondents argue that even if the State does not command the transfers\nat issue, it reviews and either approves or rejects them on the merits. The regulations cited by\nrespondents will not bear this construction. Although the State requires the nursing homes to\ncomplete patient care assessment forms and file them with state Medicaid officials, and although\nfederal law requires that state officials review these assessments, nothing in the regulations\nauthorizes the officials to approve or disapprove decisions either to retain or discharge particular\npatients, and petitioners specifically disclaim any such responsibility. Instead, the State is obliged to\napprove or disapprove continued payment of Medicaid benefits after a change in the patient\xe2\x80\x99s need for\nservices. Adjustments in benefit levels in response to a decision to discharge or transfer a patient does\nnot constitute approval or enforcement of that decision. As we have already concluded, this degree of\ninvolvement is too slim a basis on which to predicate a finding of state action in the decision itself.\n24 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cFinally, respondents advance the rather vague generalization that such a relationship exists between\nthe State and the nursing homes it regulates that the State may be considered a joint participant in\nthe homes\xe2\x80\x99 discharge and transfer of Medicaid patients. For this proposition they rely upon Burton v.\nWilmington Parking Authority, 365 U.S. 715 (1961). Respondents argue that state subsidization of the\noperating and capital costs of the facilities, payment of the medical expenses of more than 90% of\nthe patients in the facilities, and the licensing of the facilities by the State, taken together convert\nthe action of the homes into \xe2\x80\x9cstate\xe2\x80\x9d action. But accepting all of these assertions as true, we are\nnonetheless unable to agree that the State is responsible for the decisions challenged by respondents.\nAs we have previously held, privately owned enterprises providing services that the State would not\nnecessarily provide, even though they are extensively regulated, do not fall within the ambit of Burton.\nJackson v. Metropolitan Edison Co., 419 U.S. at 357\xe2\x80\x93358. That programs undertaken by the State result\nin substantial funding of the activities of a private entity is no more persuasive than the fact of\nregulation of such an entity in demonstrating that the State is responsible for decisions made by the\nentity in the course of its business.\nWe are also unable to conclude that the nursing homes perform a function that has been \xe2\x80\x9ctraditionally\nthe exclusive prerogative of the State.\xe2\x80\x9d Jackson v. Metropolitan Edison Co., 419 U.S. at 353. Respondents\xe2\x80\x99\nargument in this regard is premised on their assertion that both the Medicaid statute and the New\nYork Constitution make the State responsible for providing every Medicaid patient with nursing\nhome services. The state constitutional provisions cited by respondents, however, do no more than\nauthorize the legislature to provide funds for the care of the needy. They do not mandate the provision\nof any particular care, much less long-term nursing care. Similarly, the Medicaid statute requires\nthat the States provide funding for skilled nursing services as a condition to the receipt of federal\nmoneys. It does not require that the States provide the services themselves. Even if respondents\xe2\x80\x99\ncharacterization of the State\xe2\x80\x99s duties were correct, however, it would not follow that decisions made in\nthe day-to-day administration of a nursing home are the kind of decisions traditionally and exclusively\nmade by the sovereign for and on behalf of the public. Indeed, respondents make no such claim, nor\ncould they.\n\nIV\nWe conclude that respondents have failed to establish \xe2\x80\x9cstate action\xe2\x80\x9d in the nursing homes\xe2\x80\x99 decisions to\ndischarge or transfer Medicaid patients to lower levels of care. Consequently, they have failed to prove\nthat petitioners have violated rights secured by the Fourteenth Amendment. The contrary judgment\nof the Court of Appeals is accordingly\nReversed.\nJUSTICE BRENNAN, WITH WHOM JUSTICE MARSHALL, JOINS, DISSENTING.\nIf the Fourteenth Amendment is to have its intended effect as a restraint on the abuse of state\npower, courts must be sensitive to the manner in which state power is exercised. In an era of active\ngovernment intervention to remedy social ills, the true character of the State\xe2\x80\x99s involvement in, and\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 25\n\n\x0ccoercive influence over, the activities of private parties, often through complex and opaque regulatory\nframeworks, may not always be apparent. But if the task that the Fourteenth Amendment assigns to\nthe courts is thus rendered more burdensome, the courts\xe2\x80\x99 obligation to perform that task faithfully,\nand consistently with the constitutional purpose, is rendered more, not less, important.\nIn deciding whether \xe2\x80\x9cstate action\xe2\x80\x9d is present * * * the ultimate determination is simply whether the\ndefendant has brought the force of the State to bear against the plaintiff in a manner the Fourteenth\nAmendment was designed to inhibit. Where the defendant is a government employee, this inquiry\nis relatively straightforward. But in deciding whether \xe2\x80\x9cstate action\xe2\x80\x9d is present in actions performed\ndirectly by persons other than government employees, what is required is a realistic and delicate\nappraisal of the State\xe2\x80\x99s involvement in the total context of the action taken. \xe2\x80\x9cOnly by sifting facts and\nweighing circumstances can the nonobvious involvement of the State in private conduct be attributed\nits true significance.\xe2\x80\x9d Burton v. Wilmington Parking Authority, 365 U.S. 715, 722 (1961). See Lugar v.\nEdmondson Oil Co., 457 U.S. 922, 939\xe2\x80\x93942 (1982). The Court today departs from the Burton precept,\nignoring the nature of the regulatory framework presented by this case in favor of the recitation\nof abstract tests and a pigeonhole approach to the question of state action. But however correct\nthe Court\xe2\x80\x99s tests may be in the abstract, they are worth nothing if they are not faithfully applied.\nBolstered by its own preconception of the decisionmaking process challenged by respondents, and of\nthe relationship between the State, the nursing home operator, and the nursing home resident, the\nCourt subjects the regulatory scheme at issue here to only the most perfunctory examination. The\nCourt thus fails to perceive the decisive involvement of the State in the private conduct challenged by\nthe respondents.\n\nI\nA\nThe Court\xe2\x80\x99s analysis in this case is simple, but it is also demonstrably flawed, for it proceeds upon a\npremise that is factually unfounded. The Court first describes the decision to transfer a nursing home\nresident from one level of care to another as involving nothing more than a physician\xe2\x80\x99s independent\nassessment of the appropriate medical treatment required by that resident. Building upon that factual\npremise, the Court has no difficulty concluding that the State plays no decisive role in the transfer\ndecision: By reducing the resident\xe2\x80\x99s benefits to meet the change in treatment prescribed, the State is\nsimply responding to \xe2\x80\x9cmedical judgments made by private parties according to professional standards\nthat are not established by the State.\xe2\x80\x9d If this were an accurate characterization of the circumstances\nof this case, I too would conclude that there was no \xe2\x80\x9cstate action\xe2\x80\x9d in the nursing home\xe2\x80\x99s decision to\ntransfer. A doctor who prescribes drugs for a patient on the basis of his independent medical judgment\nis not rendered a state actor merely because the State may reimburse the patient in different amounts\ndepending upon which drug is prescribed.\nBut the level-of-care decisions at issue in this case, even when characterized as the \xe2\x80\x9cindependent\xe2\x80\x9d\ndecision of the nursing home have far less to do with the exercise of independent professional\n26 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cjudgment than they do with the State\xe2\x80\x99s desire to save money. To be sure, standards for implementing\nthe level-of-care scheme established by the Medicaid program are framed with reference to the\nunderlying purpose of that program\xe2\x80\x94to provide needed medical services. And not surprisingly, the\nState relies on doctors to implement this aspect of its Medicaid program. But the idea of two\nmutually exclusive levels of care\xe2\x80\x94skilled nursing care and intermediate care\xe2\x80\x94embodied in the federal\nregulatory scheme and implemented by the State, reflects no established medical model of health\ncare. On the contrary, the two levels of long-term institutionalized care enshrined in the Medicaid\nscheme are legislative constructs, designed to serve governmental cost-containment policies.\nThe fiscal underpinning of the level-of-care determinations at issue here are apparent from the\nlegislative history of the \xe2\x80\x9cintermediate care\xe2\x80\x9d concept. [The dissent extensively discussed the\nlegislative history and amendments to the federal statute as well as the New York statutes and\nregulations].\n\nB\n* * * * As a fair reading of the relevant regulations makes clear, the State (and Federal Government)\nhave created, and administer, the level system as a cost-saving tool of the Medicaid program. The\nimpetus for this active program of review imposed upon the nursing home operator is primarily\nthis fiscal concern. The State has set forth precisely the standards upon which the level-of-care\ndeterminations are to be made, and has delegated administration of the program to the nursing home\noperators, rather than assume the burden of administering the program itself. Thus, not only does\nthe program implement the State\xe2\x80\x99s fiscal goals, but, to paraphrase the Court, \xe2\x80\x9c[t]hese requirements . . .\nmake the State responsible for actual decisions to discharge or transfer particular patients.\xe2\x80\x9d Where, as\nhere, a private party acts on behalf of the State to implement state policy, his action is state action.\n\nII\nThe deficiency in the Court\xe2\x80\x99s analysis is dramatized by its inattention to the special characteristics\nof the nursing home. Quite apart from the State\xe2\x80\x99s specific involvement in the transfer decisions at\nissue in this case, the nature of the nursing home as an institution, sustained by state and federal\nfunds, and pervasively regulated by the State so as to ensure that it is properly implementing the\ngovernmental undertaking to provide assistance to the elderly and disabled that is embodied in the\nMedicaid program, undercuts the Court\xe2\x80\x99s sterile approach to the state action inquiry in this case. The\nprivate nursing homes of the Nation exist, and profit, at the sufferance of state and federal Medicaid\nand Medicare agencies. The degree of interdependence between the State and the nursing home is\nfar more pronounced than it was between the State and the private entity in Burton v. Wilmington\nParking Authority, 365 U.S. 715 (1961). The State subsidizes practically all of the operating and capital\ncosts of the facility, and pays the medical expenses of more than 90% of its residents. And, in setting\nreimbursement rates, the State generally affords the nursing homes a profit as well. Even more\nstriking is the fact that the residents of those homes are, by definition, utterly dependent on the State\nfor their support and their placement. For many, the totality of their social network is the nursing\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 27\n\n\x0chome community. Within that environment, the nursing home operator is the immediate authority,\nthe provider of food, clothing, shelter, and health care, and, in every significant respect, the functional\nequivalent of a State. Cf. Marsh v. Alabama, 326 U.S. 501 (1946). Surely, in this context we must be\nespecially alert to those situations in which the State \xe2\x80\x9chas elected to place its power, property and\nprestige behind\xe2\x80\x9d the actions of the nursing home owner. See Burton v. Wilmington Parking Authority,\n365 U.S. at 725.\nYet, whatever might be the status of the nursing home operator where the State has simply left the\nresident in his charge, while paying for the resident\xe2\x80\x99s support and care, it is clear that the State has\nnot simply left nursing home patients to the care of nursing home operators. No one would doubt\nthat nursing homes are \xe2\x80\x9cpervasively regulated\xe2\x80\x9d by State and Federal Governments; virtually every\naction by the operator is subject to state oversight. But the question at this stage is not whether\nthe procedures set forth in the state and federal regulatory scheme are sufficient to protect the\nresidents\xe2\x80\x99 interests. We are confronted with the question preliminary to any Fourteenth Amendment\nchallenge: whether the State has brought its force to bear against the plaintiffs through the office of\nthese private parties. In answering that question we may safely assume that when the State chooses\nto perform its governmental undertakings through private institutions, and with the aid of private\nparties, not every action of those private parties is state action. But when the State directs, supports,\nand encourages those private parties to take specific action, that is state action.\nWe may hypothesize many decisions of nursing home operators that affect patients, but are not\nattributable to the State. But with respect to decisions to transfer patients downward from one level\nof care to another, if that decision is in any way connected with the statutory review structure set\nforth above, then there is no doubt that the standard for decision, and impetus for the decision, is\nthe responsibility of the State. Indeed, with respect to the level-of-care determination, the State does\neverything but pay the nursing home operator a fixed salary. Because the State is clearly responsible\nfor the specific conduct of petitioners about which respondents complain, and because this renders\npetitioners state actors for purposes of the Fourteenth Amendment, I dissent.\n\nNotes\n1. Is there a \xe2\x80\x9ctest\xe2\x80\x9d for state action in Blum v. Yarestky?\n2. How does the Court\xe2\x80\x99s majority opinion in Blum cite Burton? Moose Lodge v. Irvis?\n3. The majority and the dissenting opinions appear to agree that Jackson v. Metropolitan Edison Co.,\n419 U.S. 345 (1974), is not directly on point: the majority states that the present case is \xe2\x80\x9cobviously\ndifferent\xe2\x80\x9d from several cases, including Jackson and Irvis. But how does the majority rely on the \xe2\x80\x9crule\xe2\x80\x9d\nfrom Jackson in constructing its own \xe2\x80\x9ctest\xe2\x80\x9d?\n\n28 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cV. What is the \xe2\x80\x9cTest\xe2\x80\x9d for State Action?\nNote: Peremptory Challenges and Batson\nIn order to understand the next case, Edmonson v. Leesville Concrete Company, Inc., it is necessary to\nbe familiar with two underlying legal matters: peremptory challenges and Batson v. Kentucky (1986).\nPeremptory challenges are part of the process of selecting a jury. American courts generally allow\nattorneys a role in selecting the jury in criminal and civil cases. Each attorney may ask the judge to\nexclude a potential juror \xe2\x80\x9cfor cause\xe2\x80\x9d \xe2\x80\x93 for example, because the juror is related to a party or who\nexhibits explicit bias. In addition, each attorney has a number of \xe2\x80\x9cperemptory challenges,\xe2\x80\x9d under\nwhich a potential juror is excluded at the attorney\xe2\x80\x99s request regardless of whether good causes exist\nfor the exclusion.\nIn Batson v. Kentucky, 476 U.S. 79 (1986), the Court held that it was a denial of equal protection for\na prosecutor to use peremptory challenges in a criminal case for the purpose of excluding racial\nminorities from the jury. The Court in Batson held that a defendant must first show that he is a\nmember of a \xe2\x80\x9ccognizable racial group\xe2\x80\x9d and that the prosecutor has used the peremptory challenges\nto exclude potential jurors from that racial group. After this initial prima facie showing, the burden\nthen shifts to the prosecutor to demonstrate that there was a race neutral reason for exercising\nthe peremptory challenge against that potential juror. The defendant can argue that the prosecutor\xe2\x80\x99s\nproffered neutral reason is pretextual. The judge then rules on whether the peremptory challenge can\nbe exercised against the potential jurors consistent with equal protection.\n\nEdmonson v. Leesville Concrete Company, Inc.\n500 U.S. 614 (1991)\nKENNEDY, J., DELIVERED THE OPINION OF THE COURT, IN WHICH WHITE, MARSHALL, BLACKMUN, STEVENS, AND\nSOUTER, JJ., JOINED. O\xe2\x80\x99CONNOR, J., FILED A DISSENTING OPINION, IN WHICH REHNQUIST, C.J., AND SCALIA, J., JOINED.\nSCALIA, J., FILED A DISSENTING OPINION.\nJUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT.\n* * * * Thaddeus Donald Edmonson, a construction worker, was injured in a job-site accident at Fort\nPolk, Louisiana, a federal enclave. Edmonson sued Leesville Concrete Company for negligence in the\nUnited States District Court for the Western District of Louisiana, claiming that a Leesville employee\npermitted one of the company\xe2\x80\x99s trucks to roll backward and pin him against some construction\nequipment. * * * *\nDuring voir dire, Leesville used two of its three peremptory challenges authorized by statute to\nremove black persons from the prospective jury. Citing our decision in Batson v. Kentucky, Edmonson,\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 29\n\n\x0cwho is himself black, requested that the District Court require Leesville to articulate a race-neutral\nexplanation for striking the two jurors. The District Court denied the request on the ground that\nBatson does not apply in civil proceedings. As impaneled, the jury included 11 white persons and 1\nblack person. The jury rendered a verdict for Edmonson, assessing his total damages at $90,000. It\nalso attributed 80\xe2\x80\x9d of the fault to Edmonson\xe2\x80\x99s contributory negligence, however, and awarded him the\nsum of $18,000.\n* * * * With a few exceptions, such as the provisions of the Thirteenth Amendment, constitutional\nguarantees of individual liberty and equal protection do not apply to the actions of private entities.\nThis fundamental limitation on the scope of constitutional guarantees \xe2\x80\x9cpreserves an area of individual\nfreedom by limiting the reach of federal law\xe2\x80\x9d and \xe2\x80\x9cavoids imposing on the State, its agencies or\nofficials, responsibility for conduct for which they cannot fairly be blamed.\xe2\x80\x9d Lugar v. Edmondson Oil\nCo. (1982). One great object of the Constitution is to permit citizens to structure their private relations\nas they choose subject only to the constraints of statutory or decisional law.\nTo implement these principles, courts must consider from time to time where the governmental\nsphere ends and the private sphere begins. Although the conduct of private parties lies beyond the\nConstitution\xe2\x80\x99s scope in most instances, governmental authority may dominate an activity to such an\nextent that its participants must be deemed to act with the authority of the government and, as a\nresult, be subject to constitutional constraints. * * * *\n{In Lugar,} we considered the state-action question in the context of a due process challenge to a\nState\xe2\x80\x99s procedure allowing private parties to obtain prejudgment attachments. We asked first whether\nthe claimed constitutional deprivation resulted from the exercise of a right or privilege having its\nsource in state authority, and second, whether the private party charged with the deprivation could\nbe described in all fairness as a state actor.\nThere can be no question that the first part of the Lugar inquiry is satisfied here. By their very\nnature, peremptory challenges have no significance outside a court of law. Their sole purpose is\nto permit litigants to assist the government in the selection of an impartial trier of fact. * * * *\nPeremptory challenges are permitted only when the government, by statute or decisional law, deems\nit appropriate to allow parties to exclude a given number of persons who otherwise would satisfy the\nrequirements for service on the petit jury.\n* * * * In the case before us, the challenges were exercised under a federal statute that provides, inter\nalia:\nIn civil cases, each party shall be entitled to three peremptory challenges. Several defendants\nor several plaintiffs may be considered as a single party for the purposes of making challenges,\nor the court may allow additional peremptory challenges and permit them to be exercised\nseparately or jointly.\n28 U.S.C. \xc2\xa7 1870.\nWithout this authorization, granted by an Act of Congress itself, Leesville would not have been able to\nengage in the alleged discriminatory acts.\n30 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cGiven that the statutory authorization for the challenges exercised in this case is clear, the remainder\nof our state-action analysis centers around the second part of the Lugar test, whether a private\nlitigant in all fairness must be deemed a government actor in the use of peremptory challenges.\nAlthough we have recognized that this aspect of the analysis is often a factbound inquiry, our cases\ndisclose certain principles of general application. Our precedents establish that, in determining\nwhether a particular action or course of conduct is governmental in character, it is relevant to\nexamine the following: the extent to which the actor relies on governmental assistance and benefits,\nsee Tulsa Professional Collection Services, Inc. v. Pope (1988); Burton v. Wilmington Parking Authority\n(1961); whether the actor is performing a traditional governmental function, see Terry v. Adams (1953);\nMarsh v. Alabama (1946); cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm.\n(1987); and whether the injury caused is aggravated in a unique way by the incidents of governmental\nauthority, see Shelley v. Kraemer, (1948). Based on our application of these three principles to the\ncircumstances here, we hold that the exercise of peremptory challenges by the defendant in the\nDistrict Court was pursuant to a course of state action.\nAlthough private use of state-sanctioned private remedies or procedures does not rise, by itself, to the\nlevel of state action our cases have found state action when private parties make extensive use of state\nprocedures with \xe2\x80\x9cthe overt, significant assistance of state officials.\xe2\x80\x9d It cannot be disputed that, without\nthe overt, significant participation of the government, the peremptory challenge system, as well as\nthe jury trial system of which it is a part, simply could not exist. As discussed above, peremptory\nchallenges have no utility outside the jury system, a system which the government alone administers.\nIn the federal system, Congress has established the qualifications for jury service, and has outlined the\nprocedures by which jurors are selected. To this end, each district court in the federal system must\nadopt a plan for locating and summoning to the court eligible prospective jurors. This plan, as with all\nother trial court procedures, must implement statutory policies of random juror selection from a fair\ncross section of the community, and non-exclusion on account of race, color, religion, sex, national\norigin, or economic status. * * * *\nAt the outset of the selection process, prospective jurors must complete jury qualification forms\nas prescribed by the Administrative Office of the United States Courts. Failure to do so may result\nin fines and imprisonment, as might a willful misrepresentation of a material fact in answering a\nquestion on the form. In a typical case, counsel receive these forms and rely on them when exercising\ntheir peremptory strikes. The clerk of the United States district court, a federal official, summons\npotential jurors from their employment or other pursuits. They are required to travel to a United\nStates courthouse, where they must report to juror lounges, assembly rooms, and courtrooms at the\ndirection of the court and its officers. Whether or not they are selected for a jury panel, summoned\njurors receive a per diem fixed by statute for their service.\nThe trial judge exercises substantial control over voir dire in the federal system. The judge determines\nthe range of information that may be discovered about a prospective juror, and so affects the exercise\nof both challenges for cause and peremptory challenges. In some cases, judges may even conduct the\nentire voir dire by themselves.* * * * The judge oversees the exclusion of jurors for cause, in this way\ndetermining which jurors remain eligible for the exercise of peremptory strikes. In cases involving\nmultiple parties, the trial judge decides how peremptory challenges shall be allocated among them.\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 31\n\n\x0cWhen a lawyer exercises a peremptory challenge, the judge advises the juror he or she has been\nexcused.\n* * * * [A] private party could not exercise its peremptory challenges absent the overt, significant\nassistance of the court. The government summons jurors, constrains their freedom of movement, and\nsubjects them to public scrutiny and examination. The party who exercises a challenge invokes the\nformal authority of the court, which must discharge the prospective juror, thus effecting the \xe2\x80\x9cfinal and\npractical denial\xe2\x80\x9d of the excluded individual\xe2\x80\x99s opportunity to serve on the petit jury. Without the direct\nand indispensable participation of the judge, who beyond all question is a state actor, the peremptory\nchallenge system would serve no purpose. By enforcing a discriminatory peremptory challenge, the\ncourt \xe2\x80\x9chas not only made itself a party to the [biased act], but has elected to place its power, property\nand prestige behind the [alleged] discrimination.\xe2\x80\x9d In so doing, the government has \xe2\x80\x9ccreate[d] the\nlegal framework governing the [challenged] conduct,\xe2\x80\x9d and in a significant way has involved itself with\ninvidious discrimination.\nIn determining Leesville\xe2\x80\x99s state-actor status, we next consider whether the action in question involves\nthe performance of a traditional function of the government. A traditional function of government\nis evident here. The peremptory challenge is used in selecting an entity that is a quintessential\ngovernmental body, having no attributes of a private actor. The jury exercises the power of the\ncourt and of the government that confers the court\xe2\x80\x99s jurisdiction. * * * * In the federal system, the\nConstitution itself commits the trial of facts in a civil cause to the jury. Should either party to a\ncause invoke its Seventh Amendment right, the jury becomes the principal factfinder, charged with\nweighing the evidence, judging the credibility of witnesses, and reaching a verdict. The jury\xe2\x80\x99s factual\ndeterminations as a general rule are final. In some civil cases* * * * the jury can weigh the gravity\nof a wrong and determine the degree of the government\xe2\x80\x99s interest in punishing and deterring willful\nmisconduct. A judgment based upon a civil verdict may be preclusive of issues in a later case, even\nwhere some of the parties differ. And in all jurisdictions a true verdict will be incorporated in a\njudgment enforceable by the court. These are traditional functions of government, not of a select,\nprivate group beyond the reach of the Constitution.\nIf a government confers on a private body the power to choose the government\xe2\x80\x99s employees or\nofficials, the private body will be bound by the constitutional mandate of race neutrality. At least a\nplurality of the Court recognized this principle in Terry v. Adams (1953). There we found state action\nin a scheme in which a private organization known as the Jaybird Democratic Association conducted\nwhites-only elections to select candidates to run in the Democratic primary elections in Ford Bend\nCounty, Texas. The Jaybird candidate was certain to win the Democratic primary and the Democratic\ncandidate was certain to win the general election.* * * *\nThe principle that the selection of state officials, other than through election by all qualified voters,\nmay constitute state action applies with even greater force in the context of jury selection through\nthe use of peremptory challenges. Though the motive of a peremptory challenge may be to protect\na private interest, the objective of jury selection proceedings is to determine representation on a\ngovernmental body. Were it not for peremptory challenges, there would be no question that the\nentire process of determining who will serve on the jury constitutes state action. The fact that\nthe government delegates some portion of this power to private litigants does not change the\n32 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cgovernmental character of the power exercised. The delegation of authority that in Terry occurred\nwithout the aid of legislation occurs here through explicit statutory authorization.\nWe find respondent\xe2\x80\x99s reliance on Polk County v. Dodson (1981) unavailing. In that case, we held that a\npublic defender is not a state actor in his general representation of a criminal defendant, even though\nhe may be in his performance of other official duties. While recognizing the employment relation\nbetween the public defender and the government, we noted that the relation is otherwise adversarial\nin nature. \xe2\x80\x9c[A] defense lawyer is not, and by the nature of his function cannot be, the servant of an\nadministrative superior. Held to the same standards of competence and integrity as a private lawyer,\n\xe2\x80\xa6 a public defender works under canons of professional responsibility that mandate his exercise of\nindependent judgment on behalf of the client.\xe2\x80\x9d\nIn the ordinary context of civil litigation in which the government is not a party, an adversarial\nrelation does not exist between the government and a private litigant. In the jury-selection process,\nthe government and private litigants work for the same end. Just as a government employee was\ndeemed a private actor because of his purpose and functions in Dodson, so here a private entity\nbecomes a government actor for the limited purpose of using peremptories during jury selection. The\nselection of jurors represents a unique governmental function delegated to private litigants by the\ngovernment and attributable to the government for purposes of invoking constitutional protections\nagainst discrimination by reason of race.\nOur decision in West v. Atkins (1988) provides a further illustration. We held there that a private\nphysician who contracted with a state prison to attend to the inmates\xe2\x80\x99 medical needs was a state\nactor. He was not on a regular state payroll, but we held his \xe2\x80\x9cfunction[s] within the state system, not\nthe precise terms of his employment, [determined] whether his actions can fairly be attributed to the\nState.\xe2\x80\x9d We noted:\nUnder state law, the only medical care West could receive for his injury was that provided\nby the State. If Doctor Atkins misused his power by demonstrating deliberate indifference to\nWest\xe2\x80\x99s serious medical needs, the resultant deprivation was caused, in the sense relevant for\nstate-action inquiry, by the State\xe2\x80\x99s exercise of its right to punish West by incarceration and to\ndeny him a venue independent of the State to obtain needed medical care.\nIn the case before us, the parties do not act pursuant to any contractual relation with the government.\nHere, as in most civil cases, the initial decision whether to sue at all, the selection of counsel, and\nany number of ensuing tactical choices in the course of discovery and trial may be without the\nrequisite governmental character to be deemed state action. That cannot be said of the exercise\nof peremptory challenges, however; when private litigants participate in the selection of jurors,\nthey serve an important function within the government and act with its substantial assistance. If\nperemptory challenges based on race were permitted, persons could be required by summons to be\nput at risk of open and public discrimination as a condition of their participation in the justice system.\nThe injury to excluded jurors would be the direct result of governmental delegation and participation.\nFinally, we note that the injury caused by the discrimination is made more severe because the\ngovernment permits it to occur within the courthouse itself. Few places are a more real expression of\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 33\n\n\x0cthe constitutional authority of the government than a courtroom, where the law itself unfolds. Within\nthe courtroom, the government invokes its laws to determine the rights of those who stand before it.\nIn full view of the public, litigants press their cases, witnesses give testimony, juries render verdicts,\nand judges act with the utmost care to ensure that justice is done.\nRace discrimination within the courtroom raises serious questions as to the fairness of the\nproceedings conducted there. Racial bias mars the integrity of the judicial system and prevents the\nidea of democratic government from becoming a reality. In the many times we have addressed the\nproblem of racial bias in our system of justice, we have not \xe2\x80\x9cquestioned the premise that racial\ndiscrimination in the qualification or selection of jurors offends the dignity of persons and the\nintegrity of the courts.\xe2\x80\x9d To permit racial exclusion in this official forum compounds the racial insult\ninherent in judging a citizen by the color of his or her skin.\n* * * * It remains to consider whether a prima facie case of racial discrimination has been established\nin the case before us, requiring Leesville to offer race-neutral explanations for its peremptory\nchallenges. In Batson, we held that determining whether a prima facie case has been established\nrequires consideration of all relevant circumstances, including whether there has been a pattern of\nstrikes against members of a particular race. The same approach applies in the civil context, and we\nleave it to the trial courts in the first instance to develop evidentiary rules for implementing our\ndecision.\nJUSTICE O\xe2\x80\x99CONNOR, WITH WHOM THE CHIEF JUSTICE AND JUSTICE SCALIA JOIN, DISSENTING {OMITTED}.\nJUSTICE SCALIA, DISSENTING {OMITTED}{ARGUING THE DECISION WILL HAVE CONCRETE COSTS}.\n\nNotes\n1. Are you prepared to articulate the \xe2\x80\x9ctest\xe2\x80\x9d from Edmonson?\n2. Using the attorney for Leesville Concrete Company, Inc. as a possible \xe2\x80\x9cstate actor,\xe2\x80\x9d describe other\nsituations in which he might be a state actor and situations in which he clearly would not be a state\nactor.\n3. How would you use the doctrine developed in Batson in your \xe2\x80\x9crule\xe2\x80\x9d or \xe2\x80\x9cholding\xe2\x80\x9d of Edmonson?\n\nManhattan Community Access Corporation v. Halleck\n588 U.S. ___ (2019)\n\n34 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cKAVANAUGH, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ROBERTS, C. J., AND THOMAS, ALITO, AND\nGORSUCH, JJ., JOINED. SOTOMAYOR, J., FILED A DISSENTING OPINION, IN WHICH GINSBURG, BREYER, AND KAGAN, JJ.,\nJOINED.\nJUSTICE KAVANAUGH DELIVERED THE OPINION OF THE COURT.\nThe Free Speech Clause of the First Amendment constrains governmental actors and protects private\nactors. To draw the line between governmental and private, this Court applies what is known as the\nstate-action doctrine. Under that doctrine, as relevant here, a private entity may be considered a\nstate actor when it exercises a function \xe2\x80\x9ctraditionally exclusively reserved to the State.\xe2\x80\x9d Jackson v.\nMetropolitan Edison Co., 419 U.S. 345 (1974).\nThis state-action case concerns the public access channels on Time Warner\xe2\x80\x99s [now Spectrum] cable\nsystem in Manhattan. Public access channels are available for private citizens to use. The public\naccess channels on Time Warner\xe2\x80\x99s cable system in Manhattan are operated by a private nonprofit\ncorporation known as MNN. The question here is whether MNN\xe2\x80\x94even though it is a private\nentity\xe2\x80\x94nonetheless is a state actor when it operates the public access channels. In other words, is\noperation of public access channels on a cable system a traditional, exclusive public function? If so,\nthen the First Amendment would restrict MNN\xe2\x80\x99s exercise of editorial discretion over the speech and\nspeakers on the public access channels.\nUnder the state-action doctrine as it has been articulated and applied by our precedents, we conclude\nthat operation of public access channels on a cable system is not a traditional, exclusive public\nfunction. Moreover, a private entity such as MNN who opens its property for speech by others is not\ntransformed by that fact alone into a state actor. In operating the public access channels, MNN is a\nprivate actor, not a state actor, and MNN therefore is not subject to First Amendment constraints on\nits editorial discretion. We reverse in relevant part the judgment of the Second Circuit, and we remand\nthe case for further proceedings consistent with this opinion.\n\nI\nA\nSince the 1970s, public access channels have been a regular feature on cable television systems\nthroughout the United States. * * * * Congress passed and President Reagan signed the Cable\nCommunications Policy Act of 1984. The Act authorized state and local governments to require cable\noperators to set aside channels on their cable systems for public access.\nThe New York State Public Service Commission regulates cable franchising in New York State and\nrequires cable operators in the State to set aside channels on their cable systems for public access.\n16 N.Y. Codes, Rules & Regs. \xc2\xa7\xc2\xa7 895.1(f), 895.4(b) (2018). State law requires that use of the public access\nchannels be free of charge and first-come, first-served. Under state law, the cable operator operates\n\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 35\n\n\x0cthe public access channels unless the local government in the area chooses to itself operate the\nchannels or designates a private entity to operate the channels.\nTime Warner [now known as Spectrum] operates a cable system in Manhattan. Under state law, Time\nWarner must set aside some channels on its cable system for public access. New York City (the City)\nhas designated a private nonprofit corporation named Manhattan Neighborhood Network, commonly\nreferred to as MNN, to operate Time Warner\xe2\x80\x99s public access channels in Manhattan. This case involves\na complaint against MNN regarding its management of the public access channels.\n\nB\nBecause this case comes to us on a motion to dismiss, we accept the allegations in the complaint as\ntrue.\nDeeDee Halleck and Jesus Papoleto Melendez produced public access programming in Manhattan.\nThey made a film about MNN\xe2\x80\x99s alleged neglect of the East Harlem community. Halleck submitted the\nfilm to MNN for airing on MNN\xe2\x80\x99s public access channels, and MNN later televised the film. Afterwards,\nMNN fielded multiple complaints about the film\xe2\x80\x99s content. In response, MNN temporarily suspended\nHalleck from using the public access channels.\nHalleck and Melendez soon became embroiled in another dispute with MNN staff. In the wake of that\ndispute, MNN ultimately suspended Halleck and Melendez from all MNN services and facilities.\nHalleck and Melendez then sued MNN, among other parties, in Federal District Court. The two\nproducers claimed that MNN violated their First Amendment free-speech rights when MNN restricted\ntheir access to the public access channels because of the content of their film.\nMNN moved to dismiss the producers\xe2\x80\x99 First Amendment claim on the ground that MNN is not a state\nactor and therefore is not subject to First Amendment restrictions on its editorial discretion. The\nDistrict Court agreed with MNN and dismissed the producers\xe2\x80\x99 First Amendment claim.\nThe Second Circuit reversed in relevant part. In the majority opinion authored by Judge Newman and\njoined by Judge Lohier, the court stated that the public access channels in Manhattan are a public\nforum for purposes of the First Amendment. Reasoning that \xe2\x80\x9cpublic forums are usually operated by\ngovernments,\xe2\x80\x9d the court concluded that MNN is a state actor subject to First Amendment constraints.\nJudge Lohier added a concurring opinion, explaining that MNN also qualifies as a state actor for\nthe independent reason that \xe2\x80\x9cNew York City delegated to MNN the traditionally public function of\nadministering and regulating speech in the public forum of Manhattan\xe2\x80\x99s public access channels.\xe2\x80\x9d Judge\nJacobs dissented in relevant part, opining that MNN is not a state actor. He reasoned that a private\nentity\xe2\x80\x99s operation of an open forum for speakers does not render the host entity a state actor. Judge\nJacobs further stated that the operation of public access channels is not a traditional, exclusive public\nfunction.\nWe granted certiorari to resolve disagreement among the Courts of Appeals on the question whether\nprivate operators of public access cable channels are state actors subject to the First Amendment.\n36 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cth\n\nCompare 882 F. 3d 300 (case below), with Wilcher v. Akron, 498 F. 3d 516 (6\n\nCir. 2007); and Alliance\n\nfor Community Media v. FCC, 56 F. 3d 105 (D.C. Cir. 1995).\n\nII\nRatified in 1791, the First Amendment provides in relevant part that \xe2\x80\x9cCongress shall make no law . . .\nabridging the freedom of speech.\xe2\x80\x9d Ratified in 1868, the Fourteenth Amendment makes the First\nAmendment\xe2\x80\x99s Free Speech Clause applicable against the States. * * * * The text and original meaning\nof those Amendments, as well as this Court\xe2\x80\x99s longstanding precedents, establish that the Free Speech\nClause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit\nprivate abridgment of speech.\nIn accord with the text and structure of the Constitution, this Court\xe2\x80\x99s state-action doctrine\ndistinguishes the government from individuals and private entities. See Brentwood Academy v.\nTennessee Secondary School Athletic Assn., 531 U.S. 288, 295\xe2\x80\x93296 (2001). By enforcing that\nconstitutional boundary between the governmental and the private, the state-action doctrine\nprotects a robust sphere of individual liberty.\nHere, the producers claim that MNN, a private entity, restricted their access to MNN\xe2\x80\x99s public access\nchannels because of the content of the producers\xe2\x80\x99 film. The producers have advanced a First\nAmendment claim against MNN. The threshold problem with that First Amendment claim is a\nfundamental one: MNN is a private entity.\nRelying on this Court\xe2\x80\x99s state-action precedents, the producers assert that MNN is nonetheless a state\nactor subject to First Amendment constraints on its editorial discretion. Under this Court\xe2\x80\x99s cases, a\nprivate entity can qualify as a state actor in a few limited circumstances\xe2\x80\x94including, for example, (i)\nwhen the private entity performs a traditional, exclusive public function, see, e.g., Jackson, 419 U.S. at\n352\xe2\x80\x93354; (ii) when the government compels the private entity to take a particular action, see, e.g., Blum\nv. Yaretsky, 457 U.S. 991, 1004\xe2\x80\x931005 (1982); or (iii) when the government acts jointly with the private\nentity, see, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 941\xe2\x80\x93942 (1982).\nThe producers\xe2\x80\x99 primary argument here falls into the first category: The producers contend that MNN\nexercises a traditional, exclusive public function when it operates the public access channels on Time\nWarner\xe2\x80\x99s cable system in Manhattan. We disagree.\n\nA\nUnder the Court\xe2\x80\x99s cases, a private entity may qualify as a state actor when it exercises \xe2\x80\x9cpowers\ntraditionally exclusively reserved to the State.\xe2\x80\x9d Jackson, 419 U.S. at 352. It is not enough that the federal,\nstate, or local government exercised the function in the past, or still does. And it is not enough that the\nfunction serves the public good or the public interest in some way. Rather, to qualify as a traditional,\nexclusive public function within the meaning of our state-action precedents, the government must\n\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 37\n\n\x0chave traditionally and exclusively performed the function. See Rendell-Baker v. Kohn, 457 U.S. 830, 842\n(1982); Jackson, 419 U.S. at 352\xe2\x80\x93353; Evans v. Newton, 382 U.S. 296, 300 (1966).\nThe Court has stressed that \xe2\x80\x9cvery few\xe2\x80\x9d functions fall into that category. Flagg Bros., Inc. v. Brooks, 436\nU.S. 149, 158 (1978). Under the Court\xe2\x80\x99s cases, those functions include, for example, running elections\nand operating a company town. See Terry v. Adams, 345 U.S. 461, 468\xe2\x80\x93470 (1953) (elections); Marsh v.\nAlabama, 326 U.S. 501, 505\xe2\x80\x93509 (1946) (company town); Smith v. Allwright, 321 U.S. 649, 662\xe2\x80\x93666 (1944)\n(elections); Nixon v. Condon, 286 U.S. 73, 84\xe2\x80\x9389 (1932) (elections).* The Court has ruled that a variety\nof functions do not fall into that category, including, for example: running sports associations and\nleagues, administering insurance payments, operating nursing homes, providing special education,\nrepresenting indigent criminal defendants, resolving private disputes, and supplying electricity.\n[citations omitted].\nThe relevant function in this case is operation of public access channels on a cable system. That\nfunction has not traditionally and exclusively been performed by government.\nSince the 1970s, when public access channels became a regular feature on cable systems, a variety\nof private and public actors have operated public access channels, including: private cable operators;\nprivate nonprofit organizations; municipalities; and other public and private community organizations\nsuch as churches, schools, and libraries.\nThe history of public access channels in Manhattan further illustrates the point. In 1971, public\naccess channels first started operating in Manhattan. Those early Manhattan public access channels\nwere operated in large part by private cable operators, with some help from private nonprofit\norganizations. Those private cable operators continued to operate the public access channels until\nthe early 1990s, when MNN (also a private entity) began to operate the public access channels.\nIn short, operating public access channels on a cable system is not a traditional, exclusive public\nfunction within the meaning of this Court\xe2\x80\x99s cases.\n*\n\n{Court\xe2\x80\x99s footnote 1}Relatedly, this Court has recognized that a private entity may, under certain\n\ncircumstances, be deemed a state actor when the government has outsourced one of its\nconstitutional obligations to a private entity. In West v. Atkins, for example, the State was\nconstitutionally obligated to provide medical care to prison inmates. 487 U. S. 42, 56 (1988). That\nscenario is not present here because the government has no such obligation to operate public access\nchannels.\n\nB\nTo avoid that conclusion, the producers widen the lens and contend that the relevant function here is\nnot simply the operation of public access channels on a cable system, but rather is more generally the\noperation of a public forum for speech. And according to the producers, operation of a public forum\nfor speech is a traditional, exclusive public function.\n\n38 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cThat analysis mistakenly ignores the threshold state-action question. When the government provides\na forum for speech (known as a public forum), the government may be constrained by the First\nAmendment, meaning that the government ordinarily may not exclude speech or speakers from the\nforum on the basis of viewpoint, or sometimes even on the basis of content. See, e.g., Southeastern\nPromotions, Ltd. v. Conrad, 420 U.S. 546, 547, 555 (1975) (private theater leased to the city); Police\nDept. of Chicago v. Mosley, 408 U.S. 92, 93, 96 (1972) (sidewalks); Hague v. Committee for Industrial\nOrganization, 307 U.S. 496, 515\xe2\x80\x93516 (1939) (streets and parks).\nBy contrast, when a private entity provides a forum for speech, the private entity is not ordinarily\nconstrained by the First Amendment because the private entity is not a state actor. The private entity\nmay thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled\nin its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a\nstate actor subject to First Amendment requirements such as the public forum doctrine. 424 U.S. at\n520\xe2\x80\x93521.\nThe Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech\nis not an activity that only governmental entities have traditionally performed. Therefore, a private\nentity who provides a forum for speech is not transformed by that fact alone into a state actor. After\nall, private property owners and private lessees often open their property for speech. Grocery stores\nput up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs [in the Second\nCircuit opinion dissenting in part] persuasively explained, it \xe2\x80\x9cis not at all a near-exclusive function of\nthe state to provide the forums for public expression, politics, information, or entertainment.\xe2\x80\x9d\nIn short, merely hosting speech by others is not a traditional, exclusive public function and does not\nalone transform private entities into state actors subject to First Amendment constraints.\nIf the rule were otherwise, all private property owners and private lessees who open their property for\nspeech would be subject to First Amendment constraints and would lose the ability to exercise what\nthey deem to be appropriate editorial discretion within that open forum. Private property owners\nand private lessees would face the unappetizing choice of allowing all comers or closing the platform\naltogether. \xe2\x80\x9cThe Constitution by no means requires such an attenuated doctrine of dedication of\nprivate property to public use.\xe2\x80\x9d Hudgens, 424 U.S. at 519. Benjamin Franklin did not have to operate his\nnewspaper as \xe2\x80\x9ca stagecoach, with seats for everyone.\xe2\x80\x9d F. Mott, American Journalism 55 (3d ed. 1962).\nThat principle still holds true. As the Court said in Hudgens, to hold that private property owners\nproviding a forum for speech are constrained by the First Amendment would be \xe2\x80\x9cto create a courtmade law wholly disregarding the constitutional basis on which private ownership of property rests\nin this country.\xe2\x80\x9d The Constitution does not disable private property owners and private lessees from\nexercising editorial discretion over speech and speakers on their property.\n\n2\n\nThe producers here are seeking in effect to circumvent this Court\xe2\x80\x99s case law, including Hudgens. But\n3\n\nHudgens is sound, and we therefore reaffirm our holding in that case.\n\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 39\n\n\x0cC\nNext, the producers retort that this case differs from Hudgens because New York City has designated\nMNN to operate the public access channels on Time Warner\xe2\x80\x99s cable system, and because New York\nState heavily regulates MNN with respect to the public access channels. Under this Court\xe2\x80\x99s cases,\nhowever, those facts do not establish that MNN is a state actor.\nNew York City\xe2\x80\x99s designation of MNN to operate the public access channels is analogous to a\ngovernment license, a government contract, or a government-granted monopoly. But as the Court has\nlong held, the fact that the government licenses, contracts with, or grants a monopoly to a private\nentity does not convert the private entity into a state actor\xe2\x80\x94unless the private entity is performing\na traditional, exclusive public function. See, e.g. San Francisco Arts & Athletics, 483 U.S. at 543\xe2\x80\x93544\n(exclusive-use rights and corporate charters); Blum, 457 U.S. at 1011 (licenses); Rendell-Baker, 457 U.S.\nat 840\xe2\x80\x93841 (contracts); Polk County, 454 U.S. at 319, n. 9, and 320\xe2\x80\x93322 (law licenses); Jackson, 419 U.S. at\n351\xe2\x80\x93352 (electric monopolies); Columbia Broadcasting System, Inc. v. Democratic National Committee,\n412 U.S. 94, 120\xe2\x80\x93121 (1973) (broadcast licenses); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176\xe2\x80\x93177\n(1972) (liquor licenses); cf. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 638\xe2\x80\x93639 (1819)\n(corporate charters). The same principle applies if the government funds or subsidizes a private entity.\nSee Blum, 457 U.S. at 1011; Rendell\xe2\x80\x93Baker, 457 U.S. at 840.\nNumerous private entities in America obtain government licenses, government contracts, or\ngovernment-granted monopolies. If those facts sufficed to transform a private entity into a state\nactor, a large swath of private entities in America would suddenly be turned into state actors and\nbe subject to a variety of constitutional constraints on their activities. As this Court\xe2\x80\x99s many stateaction cases amply demonstrate, that is not the law. Here, therefore, the City\xe2\x80\x99s designation of MNN to\noperate the public access channels on Time Warner\xe2\x80\x99s cable system does not make MNN a state actor.\nSo, too, New York State\xe2\x80\x99s extensive regulation of MNN\xe2\x80\x99s operation of the public access channels does\nnot make MNN a state actor. Under the State\xe2\x80\x99s regulations, air time on the public access channels\nmust be free, and programming must be aired on a first-come, first-served basis. Those regulations\nrestrict MNN\xe2\x80\x99s editorial discretion and in effect require MNN to operate almost like a common carrier.\nBut under this Court\xe2\x80\x99s cases, those restrictions do not render MNN a state actor.\nIn Jackson v. Metropolitan Edison Co., the leading case on point, the Court stated that the \xe2\x80\x9cfact that\na business is subject to state regulation does not by itself convert its action into that of the State.\xe2\x80\x9d In\nthat case, the Court held that \xe2\x80\x9ca heavily regulated, privately owned utility, enjoying at least a partial\nmonopoly in the providing of electrical service within its territory,\xe2\x80\x9d was not a state actor. The Court\nexplained that the \xe2\x80\x9cmere existence\xe2\x80\x9d of a \xe2\x80\x9cregulatory scheme\xe2\x80\x9d\xe2\x80\x94even if \xe2\x80\x9cextensive and detailed\xe2\x80\x9d\xe2\x80\x94did\nnot render the utility a state actor. Nor did it matter whether the State had authorized the utility to\nprovide electric service to the community, or whether the utility was the only entity providing electric\nservice to much of that community.\nThis case closely parallels Jackson. Like the electric utility in Jackson, MNN is \xe2\x80\x9ca heavily regulated,\nprivately owned\xe2\x80\x9d entity. As in Jackson, the regulations do not transform the regulated private entity\ninto a state actor.\n40 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cPut simply, being regulated by the State does not make one a state actor. See Sullivan, 526 U.S. at 52;\nBlum, 457 U.S. at 1004; Rendell-Baker, 457 U.S. at 841\xe2\x80\x93842; Jackson, 419 U.S. at 350; Moose Lodge, 407\nU.S. at 176\xe2\x80\x93177. As the Court\xe2\x80\x99s cases have explained, the \xe2\x80\x9cbeing heavily regulated makes you a state\nactor\xe2\x80\x9d theory of state action is entirely circular and would significantly endanger individual liberty\nand private enterprise. The theory would be especially problematic in the speech context, because it\ncould eviscerate certain private entities\xe2\x80\x99 rights to exercise editorial control over speech and speakers\non their properties or platforms. * * * *\nIn sum, we conclude that MNN is not subject to First Amendment constraints on how it exercises\nits editorial discretion with respect to the public access channels. To be sure, MNN is subject to\nstate-law constraints on its editorial discretion (assuming those state laws do not violate a federal\nstatute or the Constitution). If MNN violates those state laws, or violates any applicable contracts,\nMNN could perhaps face state-law sanctions or liability of some kind. We of course take no position\non any potential state-law questions. We simply conclude that MNN, as a private actor, is not subject\nto First Amendment constraints on how it exercises editorial discretion over the speech and speakers\non its public access channels.\n\nIII.\nPerhaps recognizing the problem with their argument that MNN is a state actor under ordinary\nstate-action principles applicable to private entities and private property, the producers alternatively\ncontend that the public access channels are actually the property of New York City, not the property\nof Time Warner or MNN. On this theory, the producers say (and the dissent agrees) that MNN is in\nessence simply managing government property on behalf of New York City.\nThe short answer to that argument is that the public access channels are not the property of New York\nCity. Nothing in the record here suggests that a government (federal, state, or city) owns or leases\neither the cable system or the public access channels at issue here. Both Time Warner and MNN are\nprivate entities. Time Warner is the cable operator, and it owns its cable network, which contains\nthe public access channels. MNN operates those public access channels with its own facilities and\nequipment. The City does not own or lease the public access channels, and the City does not possess\na formal easement or other property interest in those channels. * * * *\nIt is true that the City has allowed the cable operator, Time Warner, to lay cable along public rightsof-way in the City. But Time Warner\xe2\x80\x99s access to public rights-of-way does not alter the state-action\nanalysis. * * * * But the same is true for utility providers, such as the electric utility in Jackson. Put\nsimply, a private entity\xe2\x80\x99s permission from government to use public rights-of-way does not render\nthat private entity a state actor.\nHaving said all that, our point here should not be read too broadly. Under the laws in certain States,\nincluding New York, a local government may decide to itself operate the public access channels on a\nlocal cable system (as many local governments in New York State and around the country already do),\nor could take appropriate steps to obtain a property interest in the public access channels. Depending\n\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 41\n\n\x0con the circumstances, the First Amendment might then constrain the local government\xe2\x80\x99s operation of\nthe public access channels. We decide only the case before us in light of the record before us.\n***\n[star ellipses in original]\nIt is sometimes said that the bigger the government, the smaller the individual. Consistent with\nthe text of the Constitution, the state-action doctrine enforces a critical boundary between the\ngovernment and the individual, and thereby protects a robust sphere of individual liberty. Expanding\nthe state-action doctrine beyond its traditional boundaries would expand governmental control while\nrestricting individual liberty and private enterprise. We decline to do so in this case.\nMNN is a private entity that operates public access channels on a cable system. Operating public\naccess channels on a cable system is not a traditional, exclusive public function. A private entity such\nas MNN who opens its property for speech by others is not transformed by that fact alone into a state\nactor. Under the text of the Constitution and our precedents, MNN is not a state actor subject to the\nFirst Amendment. We reverse in relevant part the judgment of the Second Circuit, and we remand the\ncase for further proceedings consistent with this opinion.\nIt is so ordered.\nJUSTICE SOTOMAYOR, WITH WHOM JUSTICE GINSBURG, JUSTICE BREYER, AND JUSTICE KAGAN JOIN, DISSENTING.\nThe Court tells a very reasonable story about a case that is not before us. I write to address the one\nthat is.\nThis is a case about an organization appointed by the government to administer a constitutional\npublic forum. (It is not, as the Court suggests, about a private property owner that simply opened up\nits property to others.) New York City (the City) secured a property interest in public-access television\nchannels when it granted a cable franchise to a cable company. State regulations require those publicaccess channels to be made open to the public on terms that render them a public forum. The\nCity contracted out the administration of that forum to a private organization, petitioner Manhattan\nCommunity Access Corporation (MNN). By accepting that agency relationship, MNN stepped into the\nCity\xe2\x80\x99s shoes and thus qualifies as a state actor, subject to the First Amendment like any other.\n\nI\nA\nA cable-television franchise is, essentially, a license to create a system for distributing cable TV in a\ncertain area. It is a valuable right, usually conferred on a private company by a local government. A\nprivate company cannot enter a local cable market without one.\n\n42 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cCable companies transmit content through wires that stretch \xe2\x80\x9cbetween a transmission facility and the\ntelevision sets of individual subscribers.\xe2\x80\x9d Creating this network of wires is a disruptive undertaking\nthat \xe2\x80\x9centails the use of public rights-of-way and easements.\xe2\x80\x9d\nNew York State authorizes municipalities to grant cable franchises to cable companies of a certain\nsize only if those companies agree to set aside at least one public access channel. New York then\nrequires that those public-access channels be open to all comers on \xe2\x80\x9ca first-come, first-served,\nnondiscriminatory basis.\xe2\x80\x9d Likewise, the State prohibits both cable franchisees and local governments\nfrom \xe2\x80\x9cexercis[ing] any editorial control\xe2\x80\x9d over the channels, aside from regulating obscenity and other\nunprotected content.\n\nB\nYears ago, New York City (no longer a party to this suit) and Time Warner Entertainment Company\n(never a party to this suit) entered into a cable-franchise agreement. Time Warner received a cable\nfranchise; the City received public-access channels. The agreement also provided that the publicaccess channels would be operated by an independent, nonprofit corporation chosen by the\nManhattan borough president. But the City, as the practice of other New York municipalities confirms,\ncould have instead chosen to run the channels itself.\nMNN is the independent nonprofit that the borough president appointed to run the channels; indeed,\nMNN appears to have been incorporated in 1991 for that precise purpose, with seven initial board\nmembers selected by the borough president (though only two thus selected today). The City arranged\nfor MNN to receive startup capital from Time Warner and to be funded through franchise fees from\nTime Warner and other Manhattan cable franchisees. As the borough president announced upon\nMNN\xe2\x80\x99s formation in 1991, MNN\xe2\x80\x99s \xe2\x80\x9ccentral charge is to administer and manage all the public access\nchannels of the cable television systems in Manhattan.\xe2\x80\x9d\nAs relevant here, respondents DeeDee Halleck and Jesus Papoleto Melendez sued MNN in U.S. District\nCourt for the Southern District of New York * * * and alleged that the public-access channels,\n\xe2\x80\x9c[r]equired by state regulation and [the] local franchise agreements,\xe2\x80\x9d are \xe2\x80\x9ca designated public forum\nof unlimited character\xe2\x80\x9d; that the City had \xe2\x80\x9cdelegated control of that public forum to MNN\xe2\x80\x9d; and that\nMNN had, in turn, engaged in viewpoint discrimination in violation of respondents\xe2\x80\x99 First Amendment\nrights. * * * *\n\nII\nI would affirm the judgment below. * * * * Just as the City would have been subject to the First\nAmendment had it chosen to run the forum itself, MNN assumed the same responsibility when it\naccepted the delegation.\n\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 43\n\n\x0cA\nWhen a person alleges a violation of the right to free speech, courts generally must consider not only\nwhat was said but also in what context it was said.\n[Sotomayor\xe2\x80\x99s discusses viewpoint discrimination and public forum doctrine under the First\nAmendment]\n[Sotomayor discusses and concludes that public access channels represent a type of property interest\nof the government that subjects them to the requirements of the First Amendment.]\n\nB\nIf New York\xe2\x80\x99s public-access channels are a public forum, it follows that New York cannot evade the\nFirst Amendment by contracting out administration of that forum to a private agent. When MNN took\non the responsibility of administering the forum, it stood in the City\xe2\x80\x99s shoes and became a state actor\n****\nThis conclusion follows from the Court\xe2\x80\x99s decision in West v. Atkins, 487 U.S. 42 (1988). The Court in\nWest unanimously held that a doctor hired to provide medical care to state prisoners was a state actor\n[subject to the Constitution]. Each State must provide medical care to prisoners, the Court explained,\nand when a State hires a private doctor to do that job, the doctor becomes a state actor, \xe2\x80\x9cclothed with\nthe authority of state law.\xe2\x80\x9d If a doctor hired by the State abuses his role, the harm is \xe2\x80\x9ccaused, in the\nsense relevant for state-action inquiry,\xe2\x80\x9d by the State\xe2\x80\x99s having incarcerated the prisoner and put his\nmedical care in that doctor\xe2\x80\x99s hands. * * * *\nWest resolves this case. Although the settings are different, the legal features are the same: When\na government (1) makes a choice that triggers constitutional obligations, and then (2) contracts\nout those constitutional responsibilities to a private entity, that entity\xe2\x80\x94in agreeing to take on the\njob\xe2\x80\x94becomes a state actor [for purposes of the Constitution].\nNot all acts of governmental delegation necessarily trigger constitutional obligations, but this one did.\n****\nThe City could have done the job itself, but it instead delegated that job to a private entity, MNN. MNN\ncould have said no, but it said yes. (Indeed, it appears to exist entirely to do this job.) By accepting the\njob, MNN accepted the City\xe2\x80\x99s responsibilities. See West, 487 U. S., at 55. The First Amendment does not\nfall silent simply because a government hands off the administration of its constitutional duties to a\nprivate actor.\n\nIII\nThe majority acknowledges that the First Amendment could apply when a local government either\n44 | Liberty, Equality, and Due Process: Third Edition\n\n\x0c(1) has a property interest in public-access channels or (2) is more directly involved in administration\nof those channels than the City is here. And it emphasizes that it \xe2\x80\x9cdecide[s] only the case before us\nin light of the record before us.\xe2\x80\x9d These case-specific qualifiers sharply limit the immediate effect of\nthe majority\xe2\x80\x99s decision, but that decision is still meaningfully wrong in two ways. First, the majority\nerroneously decides the property question against the plaintiffs as a matter of law. Second, and more\nfundamentally, the majority mistakes a case about the government choosing to hand off responsibility\nto an agent for a case about a private entity that simply enters a marketplace. * * * *\nMore fundamentally, the majority\xe2\x80\x99s opinion erroneously fixates on a type of case that is not before\nus: one in which a private entity simply enters the marketplace and is then subject to government\nregulation. The majority swings hard at the wrong pitch * * * *\nThe majority focuses on Jackson v. Metropolitan Edison Co., 419 U. S. 345 (1974), which is a paradigmatic\nexample of a line of cases that reject [constitutional] liability for private actors that simply operate\nagainst a regulatory backdrop. Jackson emphasized that the \xe2\x80\x9cfact that a business is subject to state\nregulation does not by itself convert its action into that of the State.\xe2\x80\x9d * * * *\nThe Jackson line of cases is inapposite here. MNN is not a private entity that simply ventured into the\nmarketplace. * * * * To say that MNN is nothing more than a private organization regulated by the\ngovernment is like saying that a waiter at a restaurant is an independent food seller who just happens\nto be highly regulated by the restaurant\xe2\x80\x99s owners.\nThe majority also relies on the Court\xe2\x80\x99s statements that its \xe2\x80\x9cpublic function\xe2\x80\x9d test requires that a\nfunction have been \xe2\x80\x9ctraditionally and exclusively performed\xe2\x80\x9d by the government. (emphasis deleted).\nProperly understood, that rule cabins liability in cases such as Jackson in which a private actor\nventures of its own accord into territory shared (or regulated) by the government (e.g., by opening\na power company or a shopping center). The Court made clear in West that the rule did not reach\nfurther, explaining that \xe2\x80\x9cthe fact that a state employee\xe2\x80\x99s role parallels one in the private sector\xe2\x80\x9d does\nnot preclude a finding of state action.\nWhen the government hires an agent, in other words, the question is not whether it hired the agent\nto do something that can be done in the private marketplace too. If that were the key question,\nthe doctor in West would not have been a state actor. Nobody thinks that orthopedics is a function\n\xe2\x80\x9ctraditionally exclusively reserved to the State.\xe2\x80\x9d\nThe majority consigns West to a footnote, asserting that its \xe2\x80\x9cscenario is not present here because\nthe government has no [constitutional] obligation to operate public access channels.\xe2\x80\x9d The majority\nsuggests that West is different because \xe2\x80\x9cthe State was constitutionally obligated to provide medical\ncare to prison inmates.\xe2\x80\x9d But what the majority ignores is that the State in West had no constitutional\nobligation to open the prison or incarcerate the prisoner in the first place; the obligation to provide\nmedical care arose when it made those prior choices.\nThe City had a comparable constitutional obligation here\xe2\x80\x94one brought about by its own choices,\nmade against a state-law backdrop. The City, of course, had no constitutional obligation to award a\ncable franchise or to operate public-access channels. But once the City did award a cable franchise,\nNew York law required the City to obtain public-access channels, and to open them up as a public\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 45\n\n\x0cforum. That is when the City\xe2\x80\x99s obligation to act in accordance with the First Amendment with respect\nto the channels arose. That is why, when the City handed the administration of that forum off to an\nagent, the Constitution followed.\n* * * * But two dangers lurk here regardless. On the one hand, if the City\xe2\x80\x99s decision to outsource the\nchannels to a private entity did render the First Amendment irrelevant, there would be substantial\ncause to worry about the potential abuses that could follow. Can a state university evade the First\nAmendment by hiring a nonprofit to apportion funding to student groups? Can a city do the same by\nappointing a corporation to run a municipal theater? What about its parks?\nOn the other hand, the majority hastens to qualify its decision and to cabin it to the specific facts\nof this case. Those are prudent limitations. Even so, the majority\xe2\x80\x99s focus on Jackson still risks sowing\nconfusion among the lower courts about how and when government outsourcing will render any\nabuses that follow beyond the reach of the Constitution.\nIn any event, there should be no confusion here. MNN is not a private entity that ventured into\nthe marketplace and found itself subject to government regulation. It was asked to do a job by the\ngovernment and compensated accordingly. If it does not want to do that job anymore, it can stop\n(subject, like any other entity, to its contractual obligations). But as long as MNN continues to wield\nthe power it was given by the government, it stands in the government\xe2\x80\x99s shoes and must abide by the\nFirst Amendment like any other government actor.\n\nIV\nThis is not a case about bigger governments and smaller individuals, it is a case about principals and\nagents. New York City opened up a public forum on public-access channels in which it has a property\ninterest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject\nto the First Amendment, just as if the City had decided to run the public forum itself.\nWhile the majority emphasizes that its decision is narrow and factbound, that does not make it any\nless misguided. It is crucial that the Court does not continue to ignore the reality, fully recognized by\nour precedents, that private actors who have been delegated constitutional responsibilities like this\none should be accountable to the Constitution\xe2\x80\x99s demands. I respectfully dissent.\n\n46 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=31#h5p-41\n\nVI. Reconsidering The Civil Rights Cases\nThe Civil Rights Cases\n109 U.S. 3 (1883)\n(Consolidating: U.S. v Stanley; U.S. v Ryan; U.S. v Nichols; U.S. v Singleton; Robinson and wife v Memphis\n& Charleston Railroad Company)\nBRADLEY, J., DELIVERED THE OPINION OF THE COURT IN WHICH WAITE, C.J., MILLER, FIELD, WOODS, MATTHEWS, GRAY,\nAND BLATCHFORD, JJ, JOINED. HARLAN, J., FILED A DISSENTING OPINION.\n{from the Court\xe2\x80\x99s Syllabus}:\nThese cases were all founded on the first and second sections of the Act of Congress known as the\nCivil Rights Act, passed March 1st, 1875, entitled \xe2\x80\x9cAn Act to protect all citizens in their civil and legal\nrights.\xe2\x80\x9d 18 Stat. 335. Two of the cases, those against Stanley and Nichols, were indictments for denying\nto persons of color the accommodations and privileges of an inn or hotel; two of them, those against\nRyan and Singleton, were, one on information, the other an indictment, for denying to individuals\nthe privileges and accommodations of a theatre, the information against Ryan being for refusing a\ncolored person a seat in the dress circle of Maguire\xe2\x80\x99s theatre in San Francisco, and the indictment\nagainst Singleton was for denying to another person, whose color was not stated, the full enjoyment\nof the accommodations of the theatre known as the Grand Opera House in New York, said denial not\nbeing made for any reasons by law applicable to citizens of every race and color, and regardless of any\nprevious condition of servitude.\nThe case of Robinson and wife against the Memphis & Charleston R.R. Company was an action brought\nin the Circuit Court of the United States for the Western District of Tennessee to recover the penalty\nof five hundred dollars given by the second section of the act, and the gravamen was the refusal by the\nconductor of the railroad company to allow the wife to ride in the ladies\xe2\x80\x99 car, for the reason, as stated\nin one of the counts, that she was a person of African descent. * * * *\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 47\n\n\x0cThe Stanley, Ryan, Nichols, and Singleton cases were submitted together by the solicitor general at\nthe last term of court, on the 7th day of November, 1882. There were no appearances, and no briefs\nfiled for the defendants.\nThe Robinson case was submitted on the briefs at the last term, on the 9th day of March, 1883.\nMR. JUSTICE BRADLEY DELIVERED THE OPINION OF THE COURT.\nIt is obvious that the primary and important question in all the cases is the constitutionality of the\nlaw: for if the law is unconstitutional none of the prosecutions can stand.\nThe sections of the law referred to provide as follows:\nSEC. 1. That all persons within the jurisdiction of the United States shall be entitled to the\nfull and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns,\npublic conveyances on land or water, theatres, and other places of public amusement; subject\nonly to the conditions and limitations established by law, and applicable alike to citizens of\nevery race and color, regardless of any previous condition of servitude.\nSEC. 2. That any person who shall violate the foregoing section by denying to any citizen,\nexcept for reasons by law applicable to citizens of every race and color, and regardless of any\nprevious condition of servitude, the full enjoyment of any of the accommodations, advantages,\nfacilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall\nfor every such offence forfeit and pay the sum of five hundred dollars to the person aggrieved\nthereby, to be recovered in an action of debt, with full costs; and shall also, for every such\noffence, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not\nless than five hundred nor more than one thousand dollars, or shall be imprisoned not less\nthan thirty days nor more than one year: Provided, That all persons may elect to sue for the\npenalty aforesaid, or to proceed under their rights at common law and by State statutes; and\nhaving so elected to proceed in the one mode or the other, their right to proceed in the other\njurisdiction shall be barred. But this provision shall not apply to criminal proceedings, either\nunder this act or the criminal law of any State: And provided further, That a judgment for the\npenalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to\neither prosecution respectively.\nAre these sections constitutional? The first section, which is the principal one, cannot be fairly\nunderstood without attending to the last clause, which qualifies the preceding part.\nThe essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal\nenjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances,\nand theatres; but that such enjoyment shall not be subject to any conditions applicable only to citizens\nof a particular race or color, or who had been in a previous condition of servitude. In other words,\nit is the purpose of the law to declare that, in the enjoyment of the accommodations and privileges\nof inns, public conveyances, theatres, and other places of public amusement, no distinction shall be\nmade between citizens of different race or color, or between those who have, and those who have\n48 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cnot, been slaves. Its effect is to declare, that in all inns, public conveyances, and places of amusement,\ncolored citizens, whether formerly slaves or not, and citizens of other races, shall have the same\naccommodations and privileges in all inns, public conveyances, and places of amusement as are\nenjoyed by white citizens; and vice versa. The second section makes it a penal offence in any person to\ndeny to any citizen of any race or color, regardless of previous servitude, any of the accommodations\nor privileges mentioned in the first section.\nHas Congress constitutional power to make such a law? Of course, no one will contend that the power\nto pass it was contained in the Constitution before the adoption of the last three amendments. The\npower is sought, first, in the Fourteenth Amendment, and the views and arguments of distinguished\nSenators, advanced whilst the law was under consideration, claiming authority to pass it by virtue\nof that amendment, are the principal arguments adduced in favor of the power. We have carefully\nconsidered those arguments, as was due to the eminent ability of those who put them forward, and\nhave felt, in all its force, the weight of authority which always invests a law that Congress deems itself\ncompetent to pass. But the responsibility of an independent judgment is now thrown upon this court;\nand we are bound to exercise it according to the best lights we have.\nThe first section of the Fourteenth Amendment (which is the one relied on), after declaring who\nshall be citizens of the United States, and of the several States, is prohibitory in its character, and\nprohibitory upon the States. It declares that:\nNo State shall make or enforce any law which shall abridge the privileges or immunities of\ncitizens of the United States; nor shall any State deprive any person of life, liberty, or property\nwithout due process of law; nor deny to any person within its jurisdiction the equal protection\nof the laws.\nIt is State action of a particular character that is prohibited. Individual invasion of individual rights is\nnot the subject-matter of the amendment. It has a deeper and broader scope. It nullifies and makes\nvoid all State legislation, and State action of every kind, which impairs the privileges and immunities\nof citizens of the United States, or which injures them in life, liberty or property without due process\nof law, or which denies to any of them the equal protection of the laws. It not only does this, but, in\norder that the national will, thus declared, may not be a mere brutum fulmen, the last section of the\namendment invests Congress with power to enforce it by appropriate legislation. To enforce what? To\nenforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited\nState laws and State acts, and thus to render them effectually null, void, and innocuous. This is the\nlegislative power conferred upon Congress, and this is the whole of it. It does not invest Congress\nwith power to legislate upon subjects which are within the domain of State legislation; but to provide\nmodes of relief against State legislation, or State action, of the kind referred to. It does not authorize\nCongress to create a code of municipal law for the regulation of private rights; but to provide modes\nof redress against the operation of State laws, and the action of State officers executive or judicial,\nwhen these are subversive of the fundamental rights specified in the amendment. Positive rights and\nprivileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of\nprohibition against State laws and State proceedings affecting those rights and privileges, and by\npower given to Congress to legislate for the purpose of carrying such prohibition into effect; and such\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 49\n\n\x0clegislation must necessarily be predicated upon such supposed State laws or State proceedings, and\nbe directed to the correction of their operation and effect. * * * *\n[U]ntil some State law has been passed, or some State action through its officers or agents has been\ntaken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no\nlegislation of the United States under said amendment, nor any proceeding under such legislation,\ncan be called into activity: for the prohibitions of the amendment are against State laws and acts done\nunder State authority. Of course, legislation may, and should be, provided in advance to meet the\nexigency when it arises; but it should be adapted to the mischief and wrong which the amendment\nwas intended to provide against; and that is, State laws, or State action of some kind, adverse to the\nrights of the citizen secured by the amendment. Such legislation cannot properly cover the whole\ndomain of rights appertaining to life, liberty and property, defining them and providing for their\nvindication. That would be to establish a code of municipal law regulative of all private rights between\nman and man in society. It would be to make Congress take the place of the State legislatures and\nto supersede them. It is absurd to affirm that, because the rights of life, liberty and property (which\ninclude all civil rights that men have), are by the amendment sought to be protected against invasion\non the part of the State without due process of law, Congress may therefore provide due process of\nlaw for their vindication in every case; and that, because the denial by a State to any persons, of the\nequal protection of the laws, is prohibited by the amendment, therefore Congress may establish laws\nfor their equal protection. In fine, the legislation which Congress is authorized to adopt in this behalf\nis not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may\nbe necessary and proper for counteracting such laws as the States may adopt or enforce, and which,\nby the amendment, they are prohibited from making or enforcing, or such acts and proceedings as\nthe States may commit or take, and which, by the amendment, they are prohibited from committing\nor taking. It is not necessary for us to state, if we could, what legislation would be proper for Congress\nto adopt. It is sufficient for us to examine whether the law in question is of that character.\nAn inspection of the law shows that it makes no reference whatever to any supposed or apprehended\nviolation of the Fourteenth Amendment on the part of the States. It is not predicated on any such\nview. It proceeds ex directo to declare that certain acts committed by individuals shall be deemed\noffences, and shall be prosecuted and punished by proceedings in the courts of the United States. It\ndoes not profess to be corrective of any constitutional wrong committed by the States; it does not\nmake its operation to depend upon any such wrong committed. It applies equally to cases arising in\nStates which have the justest laws respecting the personal rights of citizens, and whose authorities\nare ever ready to enforce such laws, as to those which arise in States that may have violated the\nprohibition of the amendment. In other words, it steps into the domain of local jurisprudence, and lays\ndown rules for the conduct of individuals in society towards each other, and imposes sanctions for\nthe enforcement of those rules, without referring in any manner to any supposed action of the State\nor its authorities.\nIf this legislation is appropriate for enforcing the prohibitions of the amendment, it is difficult to see\nwhere it is to stop. Why may not Congress with equal show of authority enact a code of laws for the\nenforcement and vindication of all rights of life, liberty, and property? If it is supposable that the States\nmay deprive persons of life, liberty, and property without due process of law (and the amendment\n50 | Liberty, Equality, and Due Process: Third Edition\n\n\x0citself does suppose this), why should not Congress proceed at once to prescribe due process of law\nfor the protection of every one of these fundamental rights, in every possible case, as well as to\nprescribe equal privileges in inns, public conveyances, and theatres? The truth is, that the implication\nof a power to legislate in this manner is based upon the assumption that if the States are forbidden\nto legislate or act in a particular way on a particular subject, and power is conferred upon Congress\nto enforce the prohibition, this gives Congress power to legislate generally upon that subject, and not\nmerely power to provide modes of redress against such State legislation or action. The assumption is\ncertainly unsound. It is repugnant to the Tenth Amendment of the Constitution, which declares that\npowers not delegated to the United States by the Constitution, nor prohibited by it to the States, are\nreserved to the States respectively or to the people.\n* * * * [I]t is proper to state that civil rights, such as are guaranteed by the Constitution against State\naggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority\nin the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual,\nunsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion\nof the rights of the injured party, it is true, whether they affect his person, his property, or his\nreputation; but if not sanctioned in some way by the State, or not done under State authority, his\nrights remain in full force, and may presumably be vindicated by resort to the laws of the State for\nredress. An individual cannot deprive a man of his right to vote, to hold property, to buy and sell, to\nsue in the courts, or to be a witness or a juror; he may, by force or fraud, interfere with the enjoyment\nof the right in a particular case; he may commit an assault against the person, or commit murder, or\nuse ruffian violence at the polls, or slander the good name of a fellow citizen; but, unless protected\nin these wrongful acts by some shield of State law or State authority, he cannot destroy or injure\nthe right; he will only render himself amenable to satisfaction or punishment; and amenable therefor\nto the laws of the State where the wrongful acts are committed. Hence, in all those cases where\nthe Constitution seeks to protect the rights of the citizen against discriminative and unjust laws of\nthe State by prohibiting such laws, it is not individual offences, but abrogation and denial of rights,\nwhich it denounces, and for which it clothes the Congress with power to provide a remedy. This\nabrogation and denial of rights, for which the States alone were or could be responsible, was the great\nseminal and fundamental wrong which was intended to be remedied. And the remedy to be provided\nmust necessarily be predicated upon that wrong. It must assume that in the cases provided for, the\nevil or wrong actually committed rests upon some State law or State authority for its excuse and\nperpetration.\n* * * * [I]t is clear that the law in question cannot be sustained by any grant of legislative power\nmade to Congress by the Fourteenth Amendment. That amendment prohibits the States from denying\nto any person the equal protection of the laws, and declares that Congress shall have power to\nenforce, by appropriate legislation, the provisions of the amendment. The law in question, without\nany reference to adverse State legislation on the subject, declares that all persons shall be entitled to\nequal accommodations and privileges of inns, public conveyances, and places of public amusement,\nand imposes a penalty upon any individual who shall deny to any citizen such equal accommodations\nand privileges. This is not corrective legislation; it is primary and direct; it takes immediate and\nabsolute possession of the subject of the right of admission to inns, public conveyances, and places\nof amusement. It supersedes and displaces State legislation on the same subject, or only allows it\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 51\n\n\x0cpermissive force. It ignores such legislation, and assumes that the matter is one that belongs to the\ndomain of national regulation. Whether it would not have been a more effective protection of the\nrights of citizens to have clothed Congress with plenary power over the whole subject, is not now the\nquestion. What we have to decide is, whether such plenary power has been conferred upon Congress\nby the Fourteenth Amendment; and, in our judgment, it has not.\nWe have discussed the question presented by the law on the assumption that a right to enjoy equal\naccommodation and privileges in all inns, public conveyances, and places of public amusement, is one\nof the essential rights of the citizen which no State can abridge or interfere with. Whether it is such a\nright, or not, is a different question which, in the view we have taken of the validity of the law on the\nground already stated, it is not necessary to examine.\n* * * * But the power of Congress to adopt direct and primary, as distinguished from corrective\nlegislation, on the subject in hand, is sought, in the second place, from the Thirteenth Amendment,\nwhich abolishes slavery. This amendment declares \xe2\x80\x9cthat neither slavery, nor involuntary servitude,\nexcept as a punishment for crime, whereof the party shall have been duly convicted, shall exist within\nthe United States, or any place subject to their jurisdiction;\xe2\x80\x9d and it gives Congress power to enforce\nthe amendment by appropriate legislation.\nThis amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary\nlegislation, so far as its terms are applicable to any existing state of circumstances. By its own\nunaided force and effect it abolished slavery, and established universal freedom. Still, legislation may\nbe necessary and proper to meet all the various cases and circumstances to be affected by it, and\nto prescribe proper modes of redress for its violation in letter or spirit. And such legislation may\nbe primary and direct in its character; for the amendment is not a mere prohibition of State laws\nestablishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude\nshall not exist in any part of the United States.\nIt is true, that slavery cannot exist without law, any more than property in lands and goods can\nexist without law: and, therefore, the Thirteenth Amendment may be regarded as nullifying all State\nlaws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing\nuniversal civil and political freedom throughout the United States; and it is assumed, that the power\nvested in Congress to enforce the article by appropriate legislation, clothes Congress with power to\npass all laws necessary and proper for abolishing all badges and incidents of slavery in the United\nStates: and upon this assumption it is claimed, that this is sufficient authority for declaring by law that\nall persons shall have equal accommodations and privileges in all inns, public conveyances, and places\nof amusement; the argument being, that the denial of such equal accommodations and privileges is,\nin itself, a subjection to a species of servitude within the meaning of the amendment. Conceding the\nmajor proposition to be true, that Congress has a right to enact all necessary and proper laws for the\nobliteration and prevention of slavery with all its badges and incidents, is the minor proposition also\ntrue, that the denial to any person of admission to the accommodations and privileges of an inn, a\npublic conveyance, or a theatre, does subject that person to any form of servitude, or tend to fasten\nupon him any badge of slavery? If it does not, then power to pass the law is not found in the Thirteenth\nAmendment.\n\n52 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cIn a very able and learned presentation of the cognate question as to the extent of the rights, privileges\nand immunities of citizens which cannot rightfully be abridged by state laws under the Fourteenth\nAmendment, made in a former case, a long list of burdens and disabilities of a servile character,\nincident to feudal vassalage in France, and which were abolished by the decrees of the National\nAssembly, was presented for the purpose of showing that all inequalities and observances exacted\nby one man from another were servitudes, or badges of slavery, which a great nation, in its effort to\nestablish universal liberty, made haste to wipe out and destroy. But these were servitudes imposed\nby the old law, or by long custom, which had the force of law, and exacted by one man from another\nwithout the latter\xe2\x80\x99s consent. Should any such servitudes be imposed by a state law, there can be no\ndoubt that the law would be repugnant to the Fourteenth, no less than to the Thirteenth Amendment;\nnor any greater doubt that Congress has adequate power to forbid any such servitude from being\nexacted.\nBut is there any similarity between such servitudes and a denial by the owner of an inn, a public\nconveyance, or a theatre, of its accommodations and privileges to an individual, even though the\ndenial be founded on the race or color of that individual? Where does any slavery or servitude, or\nbadge of either, arise from such an act of denial? Whether it might not be a denial of a right which, if\nsanctioned by the state law, would be obnoxious to the prohibitions of the Fourteenth Amendment, is\nanother question. But what has it to do with the question of slavery?\nIt may be that by the Black Code (as it was called), in the times when slavery prevailed, the proprietors\nof inns and public conveyances were forbidden to receive persons of the African race, because it might\nassist slaves to escape from the control of their masters. This was merely a means of preventing such\nescapes, and was no part of the servitude itself. A law of that kind could not have any such object now,\nhowever justly it might be deemed an invasion of the party\xe2\x80\x99s legal right as a citizen, and amenable to\nthe prohibitions of the Fourteenth Amendment.\nThe long existence of African slavery in this country gave us very distinct notions of what it was,\nand what were its necessary incidents. Compulsory service of the slave for the benefit of the master,\nrestraint of his movements except by the master\xe2\x80\x99s will, disability to hold property, to make contracts,\nto have a standing in court, to be a witness against a white person, and such like burdens and\nincapacities, were the inseparable incidents of the institution. Severer punishments for crimes were\nimposed on the slave than on free persons guilty of the same offences. Congress, as we have seen,\nby the Civil Rights Bill of 1866, passed in view of the Thirteenth Amendment, before the Fourteenth\nwas adopted, undertook to wipe out these burdens and disabilities, the necessary incidents of slavery,\nconstituting its substance and visible form; and to secure to all citizens of every race and color, and\nwithout regard to previous servitude, those fundamental rights which are the essence of civil freedom,\nnamely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit,\npurchase, lease, sell and convey property, as is enjoyed by white citizens. Whether this legislation\nwas fully authorized by the Thirteenth Amendment alone, without the support which it afterward\nreceived from the Fourteenth Amendment, after the adoption of which it was re-enacted with some\nadditions, it is not necessary to inquire. It is referred to for the purpose of showing that at that time\n(in 1866) Congress did not assume, under the authority given by the Thirteenth Amendment, to adjust\nwhat may be called the social rights of men and races in the community; but only to declare and\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 53\n\n\x0cvindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment\nor deprivation of which constitutes the essential distinction between freedom and slavery.\nWe must not forget that the province and scope of the Thirteenth and Fourteenth amendments\nare different; the former simply abolished slavery: the latter prohibited the States from abridging\nthe privileges or immunities of citizens of the United States; from depriving them of life, liberty, or\nproperty without due process of law, and from denying to any the equal protection of the laws. The\namendments are different, and the powers of Congress under them are different. What Congress\nhas power to do under one, it may not have power to do under the other. Under the Thirteenth\nAmendment, it has only to do with slavery and its incidents. Under the Fourteenth Amendment, it\nhas power to counteract and render nugatory all State laws and proceedings which have the effect to\nabridge any of the privileges or immunities of citizens of the United States, or to deprive them of life,\nliberty or property without due process of law, or to deny to any of them the equal protection of the\nlaws. Under the Thirteenth Amendment, the legislation, so far as necessary or proper to eradicate all\nforms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon\nthe acts of individuals, whether sanctioned by State legislation or not; under the Fourteenth, as we\nhave already shown, it must necessarily be, and can only be, corrective in its character, addressed to\ncounteract and afford relief against State regulations or proceedings.\nThe only question under the present head, therefore, is, whether the refusal to any persons of the\naccommodations of an inn, or a public conveyance, or a place of public amusement, by an individual,\nand without any sanction or support from any State law or regulation, does inflict upon such persons\nany manner of servitude, or form of slavery, as those terms are understood in this country? Many\nwrongs may be obnoxious to the prohibitions of the Fourteenth Amendment which are not, in any just\nsense, incidents or elements of slavery. Such, for example, Would be the taking of private property\nwithout due process of law; or allowing persons who have committed certain crimes (horse stealing,\nfor example) to be seized and hung by the posse comitatus without regular trial; or denying to any\nperson, or class of persons, the right to pursue any peaceful avocations allowed to others. What is\ncalled class legislation would belong to this category, and would be obnoxious to the prohibitions of\nthe Fourteenth Amendment, but would not necessarily be so to the Thirteenth, when not involving\nthe idea of any subjection of one man to another. The Thirteenth Amendment has respect, not\nto distinctions of race, or class, or color, but to slavery. The Fourteenth Amendment extends its\nprotection to races and classes, and prohibits any State legislation which has the effect of denying to\nany race or class, or to any individual, the equal protection of the laws.\n* * * * After giving to these questions all the consideration which their importance demands, we are\nforced to the conclusion that such an act of refusal has nothing to do with slavery or involuntary\nservitude, and that if it is violative of any right of the party, his redress is to be sought under the laws\nof the State; or if those laws are adverse to his rights and do not protect him, his remedy will be found\nin the corrective legislation which Congress has adopted, or may adopt, for counteracting the effect of\nState laws, or State action, prohibited by the Fourteenth Amendment. It would be running the slavery\nargument into the ground to make it apply to every act of discrimination which a person may see fit to\nmake as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or\nadmit to his concert or theatre, or deal with in other matters of intercourse or business. Innkeepers\n54 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cand public carriers, by the laws of all the States, so far as we are aware, are bound, to the extent\nof their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith\napply for them. If the laws themselves make any unjust discrimination, amenable to the prohibitions of\nthe Fourteenth Amendment, Congress has full power to afford a remedy under that amendment and\nin accordance with it.\nWhen a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the\ninseparable concomitants of that state, there must be some stage in the progress of his elevation when\nhe takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his\nrights as a citizen, or a man, are to be protected in the ordinary modes by which other men\xe2\x80\x99s rights are\nprotected. There were thousands of free colored people in this country before the abolition of slavery,\nenjoying all the essential rights of life, liberty and property the same as white citizens; yet no one, at\nthat time, thought that it was any invasion of his personal status as a freeman because he was not\nadmitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations\nin the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere\ndiscriminations on account of race or color were not regarded as badges of slavery. If, since that\ntime, the enjoyment of equal rights in all these respects has become established by constitutional\nenactment, it is not by force of the Thirteenth Amendment (which merely abolishes slavery), but by\nforce of the Thirteenth and Fifteenth Amendments.\nOn the whole we are of opinion, that no countenance of authority for the passage of the law in\nquestion can be found in either the Thirteenth or Fourteenth Amendment of the Constitution; and\nno other ground of authority for its passage being suggested, it must necessarily be declared void, at\nleast so far as its operation in the several States is concerned.\nThis conclusion disposes of the cases now under consideration. In the cases of the United States v.\nMichael Ryan, and of Richard A. Robinson and Wife v. The Memphis Charleston Railroad Company,\nthe judgments must be affirmed. In the other cases, the answer to be given will be that the first and\nsecond sections of the act of Congress of March 1st, 1875, entitled \xe2\x80\x9cAn Act to protect all citizens in\ntheir civil and legal rights,\xe2\x80\x9d are unconstitutional and void, and that judgment should be rendered upon\nthe several indictments in those cases accordingly.\nAnd it is so ordered.\nMR. JUSTICE HARLAN DISSENTING.\nThe opinion in these cases proceeds, it seems to me, upon grounds entirely too narrow and artificial.\nI cannot resist the conclusion that the substance and spirit of the recent amendments of the\nConstitution have been sacrificed by a subtle and ingenious verbal criticism. \xe2\x80\x9cIt is not the words of\nthe law but the internal sense of it that makes the law: the letter of the law is the body; the sense and\nreason of the law is the soul.\xe2\x80\x9d Constitutional provisions, adopted in the interest of liberty, and for the\npurpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and\nbelonging to American citizenship, have been so construed as to defeat the ends the people desired to\naccomplish, which they attempted to accomplish, and which they supposed they had accomplished by\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 55\n\n\x0cchanges in their fundamental law. By this I do not mean that the determination of these cases should\nhave been materially controlled by considerations of mere expediency or policy. I mean only, in this\nform, to express an earnest conviction that the court has departed from the familiar rule requiring, in\nthe interpretation of constitutional provisions, that full effect be given to the intent with which they\nwere adopted.\n* * * * The court adjudges, I think erroneously, that Congress is without power, under either the\nThirteenth or Fourteenth Amendment, to establish such regulations, and that the first and second\nsections of the statute are, in all their parts, unconstitutional and void.\n* * * * The Thirteenth Amendment, it is conceded, did something more than to prohibit slavery\nas an institution, resting upon distinctions of race, and upheld by positive law. My brethren admit\nthat it established and decreed universal civil freedom throughout the United States. But did the\nfreedom thus established involve nothing more than exemption from actual slavery? Was nothing\nmore intended than to forbid one man from owning another as property? Was it the purpose of the\nnation simply to destroy the institution, and then remit the race, theretofore held in bondage, to\nthe several States for such protection, in their civil rights, necessarily growing out of freedom, as\nthose States, in their discretion, might choose to provide? Were the States against whose protest the\ninstitution was destroyed, to be left free, so far as national interference was concerned, to make or\nallow discriminations against that race, as such, in the enjoyment of those fundamental rights which\nby universal concession, inhere in a state of freedom? * * * *\nThat there are burdens and disabilities which constitute badges of slavery and servitude, and that the\npower to enforce by appropriate legislation the Thirteenth Amendment may be exerted by legislation\nof a direct and primary character, for the eradication, not simply of the institution, but of its badges\nand incidents, are propositions which ought to be deemed indisputable. * * * * I do not contend that\nthe Thirteenth Amendment invests Congress with authority, by legislation, to define and regulate the\nentire body of the civil rights which citizens enjoy, or may enjoy, in the several States. But I hold\nthat since slavery, as the court has repeatedly declared, was the moving or principal cause of the\nadoption of that amendment, and since that institution rested wholly upon the inferiority, as a race,\nof those held in bondage, their freedom necessarily involved immunity from, and protection against,\nall discrimination against them, because of their race, in respect of such civil rights as belong to\nfreemen of other races. Congress, therefore, under its express power to enforce that amendment, by\nappropriate legislation, may enact laws to protect that people against the deprivation, because of their\nrace, of any civil rights granted to other freemen in the same State; and such legislation may be of\na direct and primary character, operating upon States, their officers and agents, and, also, upon, at\nleast, such individuals and corporations as exercise public functions and wield power and authority\nunder the State.\n* * * * I am of the opinion that such discrimination practised by corporations and individuals in\nthe exercise of their public or quasi-public functions is a badge of servitude the imposition of\nwhich Congress may prevent under its power, by appropriate legislation, to enforce the Thirteenth\nAmendment; and, consequently, without reference to its enlarged power under the Fourteenth\nAmendment, the act of March 1, 1875, is not, in my judgment, repugnant to the Constitution.\n\n56 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cIt remains now to consider these cases with reference to the power Congress has possessed since the\nadoption of the Fourteenth Amendment. Much that has been said as to the power of Congress under\nthe Thirteenth Amendment is applicable to this branch of the discussion, and will not be repeated.\n* * * * The assumption that this amendment consists wholly of prohibitions upon State laws and State\nproceedings in hostility to its provisions, is unauthorized by its language. The first clause of the first\nsection\xe2\x80\x94\xe2\x80\x9cAll persons born or naturalized in the United States, and subject to the jurisdiction thereof,\nare citizens of the United States, and of the State wherein they reside\xe2\x80\x9d\xe2\x80\x94is of a distinctly affirmative\ncharacter. In its application to the colored race, previously liberated, it created and granted, as well\ncitizenship of the United States, as citizenship of the State in which they respectively resided. It\nintroduced all of that race, whose ancestors had been imported and sold as slaves, at once, into the\npolitical community known as the \xe2\x80\x9cPeople of the United States.\xe2\x80\x9d They became, instantly, citizens of\nthe United States, and of their respective States. * * * *\nIt is, therefore, an essential inquiry what, if any, right, privilege or immunity was given, by the\nnation, to colored persons, when they were made citizens of the State in which they reside? Did the\nconstitutional grant of State citizenship to that race, of its own force, invest them with any rights,\nprivileges and immunities whatever? That they became entitled, upon the adoption of the Fourteenth\nAmendment, \xe2\x80\x9cto all privileges and immunities of citizens in the several States,\xe2\x80\x9d within the meaning of\nsection 2 of article 4 of the Constitution, no one, I suppose, will for a moment question. What are the\nprivileges and immunities to which, by that clause of the Constitution, they became entitled? To this\nit may be answered, generally, upon the authority of the adjudged cases, that they are those which are\nfundamental in citizenship in a free republican government, such as are \xe2\x80\x9ccommon to the citizens in\nthe latter States under their constitutions and laws by virtue of their being citizens.\xe2\x80\x9d * * * *\nBut what was secured to colored citizens of the United States\xe2\x80\x94as between them and their respective\nStates\xe2\x80\x94by the national grant to them of State citizenship? With what rights, privileges, or immunities\ndid this grant invest them? There is one, if there be no other\xe2\x80\x94exemption from race discrimination\nin respect of any civil right belonging to citizens of the white race in the same State. That, surely,\nis their constitutional privilege when within the jurisdiction of other States. And such must be their\nconstitutional right, in their own State, unless the recent amendments be splendid baubles, thrown\nout to delude those who deserved fair and generous treatment at the hands of the nation. Citizenship\nin this country necessarily imports at least equality of civil rights among citizens of every race in\nthe same State. It is fundamental in American citizenship that, in respect of such rights, there shall\nbe no discrimination by the State, or its officers, or by individuals or corporations exercising public\nfunctions or authority, against any citizen because of his race or previous condition of servitude.\n****\n\xe2\x80\x98In every material sense applicable to the practical enforcement of the Fourteenth Amendment,\nrailroad corporations, keepers of inns, and managers of places of public amusement are agents or\ninstrumentalities of the State, because they are charged with duties to the public, and are amenable,\nin respect of their duties and functions, to governmental regulation. It seems to me that, within the\nprinciple settled in Ex parte Virginia, a denial, by these instrumentalities of the State, to the citizen,\nbecause of his race, of that equality of civil rights secured to him by law, is a denial by the State, within\nthe meaning of the Fourteenth Amendment. If it be not, then that race is left, in respect of the civil\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 57\n\n\x0crights in question, practically at the mercy of corporations and individuals wielding power under the\nStates.\nBut the court says that Congress did not, in the act of 1866, assume, under the authority given by\nthe Thirteenth Amendment, to adjust what may be called the social rights of men and races in the\ncommunity. I agree that government has nothing to do with social, as distinguished from technically\nlegal, rights of individuals. No government ever has brought, or ever can bring, its people into social\nintercourse against their wishes. Whether one person will permit or maintain social relations with\nanother is a matter with which government has no concern. I agree that if one citizen chooses not\nto hold social intercourse with another, he is not and cannot be made amenable to the law for his\nconduct in that regard; for even upon grounds of race, no legal right of a citizen is violated by the\nrefusal of others to maintain merely social relations with him. What I affirm is that no State, nor the\nofficers of any State, nor any corporation or individual wielding power under State authority for the\npublic benefit or the public convenience, can, consistently either with the freedom established by the\nfundamental law, or with that equality of civil rights which now belongs to every citizen, discriminate\nagainst freemen or citizens, in those rights, because of their race, or because they once labored under\nthe disabilities of slavery imposed upon them as a race. The rights which Congress, by the act of 1875,\nendeavored to secure and protect are legal, not social rights. The right, for instance, of a colored\ncitizen to use the accommodations of a public highway, upon the same terms as are permitted to\nwhite citizens, is no more a social right than his right, under the law, to use the public streets of a\ncity or a town, or a turnpike road, or a public market, or a post office, or his right to sit in a public\nbuilding with others, of whatever race, for the purpose of hearing the political questions of the day\ndiscussed. Scarcely a day passes without our seeing in this court-room citizens of the white and black\nraces sitting side by side, watching the progress of our business. It would never occur to any one that\nthe presence of a colored citizen in a court-house, or court-room, was an invasion of the social rights\nof white persons who may frequent such places. And yet, such a suggestion would be quite as sound\nin law\xe2\x80\x94I say it with all respect\xe2\x80\x94as is the suggestion that the claim of a colored citizen to use, upon the\nsame terms as is permitted to white citizens, the accommodations of public highways, or public inns,\nor places of public amusement, established under the license of the law, is an invasion of the social\nrights of the white race.\n* * * * My brethren say, that when a man has emerged from slavery, and by the aid of beneficent\nlegislation has shaken off the inseparable concomitants of that state, there must be some stage in the\nprogress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite\nof the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes\nby which other men\xe2\x80\x99s rights are protected. It is, I submit, scarcely just to say that the colored race\nhas been the special favorite of the laws. The statute of 1875, now adjudged to be unconstitutional,\nis for the benefit of citizens of every race and color. What the nation, through Congress, has sought\nto accomplish in reference to that race, is\xe2\x80\x94what had already been done in every State of the Union\nfor the white race\xe2\x80\x94to secure and protect rights belonging to them as freemen and citizens; nothing\nmore. It was not deemed enough \xe2\x80\x9cto help the feeble up, but to support him after.\xe2\x80\x9d The one underlying\npurpose of congressional legislation has been to enable the black race to take the rank of mere\ncitizens. The difficulty has been to compel a recognition of the legal right of the black race to take\nthe rank of citizens, and to secure the enjoyment of privileges belonging, under the law, to them as a\n58 | Liberty, Equality, and Due Process: Third Edition\n\n\x0ccomponent part of the people for whose welfare and happiness government is ordained. At every step,\nin this direction, the nation has been confronted with class tyranny, which a contemporary English\nhistorian says is, of all tyrannies, the most intolerable, \xe2\x80\x9cfor it is ubiquitous in its operation, and weighs,\nperhaps, most heavily on those whose obscurity or distance would withdraw them from the notice\nof a single despot.\xe2\x80\x9d To-day, it is the colored race which is denied, by corporations and individuals\nwielding public authority, rights fundamental in their freedom and citizenship. At some future time,\nit may be that some other race will fall under the ban of race discrimination. If the constitutional\namendments be enforced, according to the intent with which, as I conceive, they were adopted, there\ncannot be, in this republic, any class of human beings in practical subjection to another class, with\npower in the latter to dole out to the former just such privileges as they may choose to grant. The\nsupreme law of the land has decreed that no authority shall be exercised in this country upon the basis\nof discrimination, in respect of civil rights, against freemen and citizens because of their race, color,\nor previous condition of servitude. To that decree\xe2\x80\x94for the due enforcement of which, by appropriate\nlegislation, Congress has been invested with express power\xe2\x80\x94every one must bow, whatever may have\nbeen, or whatever now are, his individual views as to the wisdom or policy, either of the recent\nchanges in the fundamental law, or of the legislation which has been enacted to give them effect.\nFor the reasons stated I feel constrained to withhold my assent to the opinion of the court.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=31#h5p-42\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=31#h5p-43\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=31#h5p-44\n\nCHAPTER ONE: An Introduction to Constitutional Law and the Issue of State Action | 59\n\n\x0cFurther Your Understanding\nCALI Lesson: State Action\nCALI, The Center for Assisted Legal Instruction, has a lesson designed to further your understanding\nof the constitutional doctrine, theories, and analysis of state action. The above-linked lesson reviews\nthe basic principles and history of state action doctrine, considers the development of the doctrine\nin the United States Supreme Court, and examines the Court\xe2\x80\x99s most recent cases. It also considers\nstate action and social media, an issue that has not yet reached the United States Supreme Court.\n\n60 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cCHAPTER TWO: Introduction to\nConstitutional Interpretation and Judicial\nReview\nI. A Basic Constitutional Timeline\nDepending on our individual histories, we each encounter the course Liberty, Equality, and Due\nProcess with different understandings of American history, political philosophy, government, or social\njustice.\nHere is a basic timeline of texts that might be helpful:\nTHE DECLARATION OF INDEPENDENCE, 1776\nAuthored by Thomas Jefferson, the Declaration\xe2\x80\x99s most famous passage is this:\nWe hold these truths to be self-evident, that all men are created equal, that they are endowed\nby their Creator with certain unalienable Rights, that among these are Life, Liberty and the\npursuit of Happiness. That to secure these rights, Governments are instituted among Men,\nderiving their just powers from the consent of the governed.\nThe Declaration of Independence also includes a list of grievances regarding Acts of King George III\nagainst the \xe2\x80\x9cAmerican\xe2\x80\x9d colonies; some of these reappear as specific guarantees in the Constitution,\nfor example, the grievance \xe2\x80\x9cquartering large bodies of armed troops among us\xe2\x80\x9d is echoed in the Third\nAmendment.\nOne of the grievances in the draft Declaration by Jefferson is an explicit attack on slavery and the\n\xe2\x80\x9cslave trade\xe2\x80\x9d: \xe2\x80\x9cHe has waged cruel war against human nature itself, violating its most sacred rights\nof life and liberty in the persons of a distant people who never offended him, captivating & carrying\nthem into slavery in another hemisphere or to incur miserable death in their transportation thither.\nThis piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian King of Great\nBritain. Determined to keep open a market where Men should be bought & sold . . . .\xe2\x80\x9d\nTHE ARTICLES OF CONFEDERATION AND PERPETUAL UNION, DRAFTED 1776, RATIFIED BY 13 STATES 1781.\nThis is the precursor to the United States Constitution, sometimes known as the United States\xe2\x80\x99\n\xe2\x80\x9cfirst constitution\xe2\x80\x9d or \xe2\x80\x9cfailed constitution,\xe2\x80\x9d usually simply called the \xe2\x80\x9cArticles of Confederation.\xe2\x80\x9d The\ngenerally accepted rationale for the failure of the Articles of Confederation was that the national\ngovernment was too weak when compared with state governments.\nCHAPTER TWO: Introduction to Constitutional Interpretation\nand Judicial Review | 61\n\n\x0cTHE UNITED STATES CONSTITUTION, INCLUDING THE BILL OF RIGHTS, DRAFTED 1787; BECAME EFFECTIVE 1789.\nIn addition to the text of the Constitution, there are three textual sources that are often cited in\nhistorical sources:\nThe Debates at the Constitutional Convention; The Anti-Federalist Papers (arguments circulated to\nthe states during the ratification process generally against the Constitution); The Federalist Papers\n(arguments circulated to the states during the ratification process in favor of the Constitution;\ngenerally anonymous but attributed and many still influential).\nThe Constitution structures the federal government into three parts: Article I establishes and\nconcerns the Legislative branch (\xe2\x80\x9cAll legislative Powers herein granted shall be vested in a Congress\nof the United States, which shall consist of a Senate and House of Representatives.\xe2\x80\x9d It provides\nspecific enumerated powers to Congress, specific limitations, and provides limitations on the powers\nof States.)\nArticle II establishes and concerns the Executive branch (It establishes the office of President and Vice\nPresident, the manner of election by \xe2\x80\x9cElectors,\xe2\x80\x9d specific roles of the President, and impeachment).\nArticle III establishes and concerns the Judicial Branch (It provides that the \xe2\x80\x9cjudicial power\xe2\x80\x9d is vested\nin one supreme court and such inferior courts as Congress may establish, extending to \xe2\x80\x9call Cases, in\nLaw and Equity, arising under this Constitution,\xe2\x80\x9d and in other instances.)\nArticles IV \xe2\x80\x93 VII also structure the government.\nArticle IV regards relations among the states and among \xe2\x80\x9ccitizens\xe2\x80\x9d of each state; Article V pertains to\nthe mode of amendment;\nArticle VI includes the Supremacy Clause declaring that the Constitution (and the laws made pursuant\nto the Constitution) are the supreme \xe2\x80\x9cLaw of the Land\xe2\x80\x9d);\nArticle VII outlines the process for ratification of the Constitution.\nThe Amendments to the Constitution as originally proposed were twelve; only ten passed and these\nare known as the Bill of Rights.\nTHE \xe2\x80\x9cRECONSTRUCTION AMENDMENTS,\xe2\x80\x9d AFTER THE CIVIL WAR (1861-1865)\nThe Thirteenth Amendment (abolition of slavery) (1865)\nThe Fourteenth Amendment (Citizenship Clause, \xe2\x80\x9cNo state shall\xe2\x80\x9d; Equal Protection, Due Process,\nPrivileges or Immunities) (1868)\nThe Fifteenth Amendment (voting shall not be deprived on basis of race) (1870)\n\n62 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cII. Judicial Review\nJudicial review\xe2\x80\x94the power of the judiciary to declare acts of a usually elected legislative or executive\nbody void as unconstitutional\xe2\x80\x94is both a cornerstone and a divisive subject of United States\nconstitutional law. Judicial review is a feature of most, but not all, constitutional democracies in the\nworld, as well as a feature of many nations that are considered less than democratic. In the so-called\nAmerican model, general courts hear constitutional as well as nonconstitutional issues. In the socalled European model, there is one or more special \xe2\x80\x9cConstitutional Court\xe2\x80\x9d devoted exclusively to\nhearing cases challenging the constitutionality of government laws or acts.\nIn addition to the judicial power to declare legislative (or executive) acts invalid, the question of\njudicial independence is important. In the federal system, judges are not elected but are nominated\nby the President and confirmed by the Senate, adding to the anti-democratic critique. Further, in\nmany nations, the term for judges is a definite one, such as ten or twelve years. In the United\nStates Constitution, Article III \xc2\xa7 1 provides that federal judges \xe2\x80\x9cshall hold their Offices during good\nBehaviour\xe2\x80\x9d which has meant life-tenure, although subject to impeachment. The central concern is\nthat judges be able to exercise independent judgment without fear of reprisal or losing their positions.\nSimply put, if a judge can be terminated by the Executive, she may be more cautious in ruling that a\nlaw signed by the Executive is invalid.\nIn the United States, Marbury v. Madison (1803) is considered the landmark case that \xe2\x80\x9cestablished\xe2\x80\x9d\njudicial review and is the case that has \xe2\x80\x9ctortured generations of law students\xe2\x80\x9d as they confront\nConstitutional Law and the issue of judicial review. It is in virtually every Constitutional Law Casebook\nin the United States, including this one.\n\nMarbury v. Madison\n5 U.S. (1 Cranch) 137 (1803)\nMR. CHIEF JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT.\nAt the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case\nrequiring the Secretary of State to show cause why a mandamus should not issue directing him to\ndeliver to William Marbury his commission as a justice of the peace for the county of Washington,\nin the District of Columbia. * * * * The peculiar delicacy of this case, the novelty of some of its\ncircumstances, and the real difficulty attending the points which occur in it require a complete\nexposition of the principles on which the opinion to be given by the Court is founded.\nIn the order in which the Court has viewed this subject, the following questions have been considered\nand decided.\n1. Has the applicant a right to the commission he demands?\nCHAPTER TWO: Introduction to Constitutional Interpretation and Judicial Review | 63\n\n\x0c2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?\n3. If they do afford him a remedy, is it a mandamus issuing from this court?\nThe first object of inquiry is:\n1. Has the applicant a right to the commission he demands? * * * *{The Court considered the\nnomination process and whether it had been followed.} To withhold the commission, therefore, is an\nact deemed by the Court not warranted by law, but violative of a vested legal right.\nThis brings us to the second inquiry, which is:\n2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?\nThe very essence of civil liberty certainly consists in the right of every individual to claim the\nprotection of the laws whenever he receives an injury. One of the first duties of government is to\nafford that protection. In Great Britain, the King himself is sued in the respectful form of a petition,\nand he never fails to comply with the judgment of his court. * * * *\nThe Government of the United States has been emphatically termed a government of laws, and not\nof men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the\nviolation of a vested legal right. * * * *\n{The Court ultimately concluded that Marbury} having this legal title to the office, he has a consequent\nright to the commission, a refusal to deliver which is a plain violation of that right, for which the laws\nof his country afford him a remedy.\nIt remains to be inquired whether,\n3. He is entitled to the remedy for which he applies. This depends on:\n1. The nature of the writ applied for, and\n2. The power of this court.\n* * * * {The Court ultimately concluded that} This, then, is a plain case of a mandamus, either to\ndeliver the commission or a copy of it from the record, and it only remains to be inquired:\nWhether it can issue from this Court.\nThe act to establish the judicial courts of the United States authorizes the Supreme Court\n\xe2\x80\x9cto issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts\nappointed, or persons holding office, under the authority of the United States.\xe2\x80\x9d\n{This is from Section 13 of the 1789 Judiciary Act, reproduced in the Notes.}The Secretary of State,\nbeing a person, holding an office under the authority of the United States, is precisely within the letter\nof the description, and if this Court is not authorized to issue a writ of mandamus to such an officer,\n\n64 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cit must be because the law is unconstitutional, and therefore absolutely incapable of conferring the\nauthority and assigning the duties which its words purport to confer and assign.\nThe Constitution vests the whole judicial power of the United States in one Supreme Court, and such\ninferior courts as Congress shall, from time to time, ordain and establish. This power is expressly\nextended to all cases arising under the laws of the United States; and consequently, in some form, may\nbe exercised over the present case, because the right claimed is given by a law of the United States.\nIn the distribution of this power it is declared that\nThe Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other\npublic ministers and consuls, and those in which a state shall be a party. In all other cases, the\nSupreme Court shall have appellate jurisdiction.\nIt has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior\ncourts is general, and the clause assigning original jurisdiction to the Supreme Court contains no\nnegative or restrictive words, the power remains to the Legislature to assign original jurisdiction to\nthat Court in other cases than those specified in the article which has been recited, provided those\ncases belong to the judicial power of the United States.\nIf it had been intended to leave it in the discretion of the Legislature to apportion the judicial power\nbetween the Supreme and inferior courts according to the will of that body, it would certainly have\nbeen useless to have proceeded further than to have defined the judicial power and the tribunals\nin which it should be vested. The subsequent part of the section is mere surplusage\xe2\x80\x94is entirely\nwithout meaning\xe2\x80\x94if such is to be the construction. If Congress remains at liberty to give this court\nappellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and\noriginal jurisdiction where the Constitution has declared it shall be appellate, the distribution of\njurisdiction made in the Constitution, is form without substance.\nAffirmative words are often, in their operation, negative of other objects than those affirmed, and, in\nthis case, a negative or exclusive sense must be given to them or they have no operation at all.\nIt cannot be presumed that any clause in the Constitution is intended to be without effect, and\ntherefore such construction is inadmissible unless the words require it.\nIf the solicitude of the Convention respecting our peace with foreign powers induced a provision that\nthe Supreme Court should take original jurisdiction in cases which might be supposed to affect them,\nyet the clause would have proceeded no further than to provide for such cases if no further restriction\non the powers of Congress had been intended. That they should have appellate jurisdiction in all other\ncases, with such exceptions as Congress might make, is no restriction unless the words be deemed\nexclusive of original jurisdiction.\nWhen an instrument organizing fundamentally a judicial system divides it into one Supreme and so\nmany inferior courts as the Legislature may ordain and establish, then enumerates its powers, and\nproceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the\ncases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction,\nCHAPTER TWO: Introduction to Constitutional Interpretation and Judicial Review | 65\n\n\x0cthe plain import of the words seems to be that, in one class of cases, its jurisdiction is original, and\nnot appellate; in the other, it is appellate, and not original. If any other construction would render the\nclause inoperative, that is an additional reason for rejecting such other construction, and for adhering\nto the obvious meaning.\nTo enable this court then to issue a mandamus, it must be shown to be an exercise of appellate\njurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.\nIt has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and\nthat, if it be the will of the Legislature that a mandamus should be used for that purpose, that will must\nbe obeyed. This is true; yet the jurisdiction must be appellate, not original.\nIt is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in\na cause already instituted, and does not create that case. Although, therefore, a mandamus may be\ndirected to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the\nsame as to sustain an original action for that paper, and therefore seems not to belong to appellate,\nbut to original jurisdiction. Neither is it necessary in such a case as this to enable the Court to exercise\nits appellate jurisdiction.\nThe authority, therefore, given to the Supreme Court by the act establishing the judicial courts of\nthe United States to issue writs of mandamus to public officers appears not to be warranted by\nthe Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be\nexercised.\nThe question whether an act repugnant to the Constitution can become the law of the land is a\nquestion deeply interesting to the United States, but, happily, not of an intricacy proportioned to its\ninterest. It seems only necessary to recognise certain principles, supposed to have been long and well\nestablished, to decide it.\nThat the people have an original right to establish for their future government such principles as, in\ntheir opinion, shall most conduce to their own happiness is the basis on which the whole American\nfabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought\nit to be frequently repeated. The principles, therefore, so established are deemed fundamental. And\nas the authority from which they proceed, is supreme, and can seldom act, they are designed to be\npermanent.\nThis original and supreme will organizes the government and assigns to different departments their\nrespective powers. It may either stop here or establish certain limits not to be transcended by those\ndepartments.\nThe Government of the United States is of the latter description. The powers of the Legislature\nare defined and limited; and that those limits may not be mistaken or forgotten, the Constitution\nis written. To what purpose are powers limited, and to what purpose is that limitation committed\nto writing, if these limits may at any time be passed by those intended to be restrained? The\ndistinction between a government with limited and unlimited powers is abolished if those limits do\nnot confine the persons on whom they are imposed, and if acts prohibited and acts allowed are\n66 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cof equal obligation. It is a proposition too plain to be contested that the Constitution controls any\nlegislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.\nBetween these alternatives there is no middle ground. The Constitution is either a superior,\nparamount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and,\nlike other acts, is alterable when the legislature shall please to alter it.\nIf the former part of the alternative be true, then a legislative act contrary to the Constitution is not\nlaw; if the latter part be true, then written Constitutions are absurd attempts on the part of the people\nto limit a power in its own nature illimitable.\nCertainly all those who have framed written Constitutions contemplate them as forming the\nfundamental and paramount law of the nation, and consequently the theory of every such government\nmust be that an act of the Legislature repugnant to the Constitution is void.\nThis theory is essentially attached to a written Constitution, and is consequently to be considered by\nthis Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in\nthe further consideration of this subject.\nIf an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity,\nbind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does\nit constitute a rule as operative as if it was a law? This would be to overthrow in fact what was\nestablished in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall,\nhowever, receive a more attentive consideration.\nIt is emphatically the province and duty of the Judicial Department to say what the law is. Those\nwho apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws\nconflict with each other, the Courts must decide on the operation of each.\nSo, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a\nparticular case, so that the Court must either decide that case conformably to the law, disregarding\nthe Constitution, or conformably to the Constitution, disregarding the law, the Court must determine\nwhich of these conflicting rules governs the case. This is of the very essence of judicial duty.\nIf, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act\nof the Legislature, the Constitution, and not such ordinary act, must govern the case to which they\nboth apply.\nThose, then, who controvert the principle that the Constitution is to be considered in court as a\nparamount law are reduced to the necessity of maintaining that courts must close their eyes on the\nConstitution, and see only the law.\nThis doctrine would subvert the very foundation of all written Constitutions. It would declare that\nan act which, according to the principles and theory of our government, is entirely void, is yet, in\npractice, completely obligatory. It would declare that, if the Legislature shall do what is expressly\nforbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving\nto the Legislature a practical and real omnipotence with the same breath which professes to restrict\nCHAPTER TWO: Introduction to Constitutional Interpretation and Judicial Review | 67\n\n\x0ctheir powers within narrow limits. It is prescribing limits, and declaring that those limits may be\npassed at pleasure.\nThat it thus reduces to nothing what we have deemed the greatest improvement on political\ninstitutions\xe2\x80\x94a written Constitution, would of itself be sufficient, in America where written\nConstitutions have been viewed with so much reverence, for rejecting the construction. But the\npeculiar expressions of the Constitution of the United States furnish additional arguments in favour\nof its rejection.\nThe judicial power of the United States is extended to all cases arising under the Constitution.\nCould it be the intention of those who gave this power to say that, in using it, the Constitution should\nnot be looked into? That a case arising under the Constitution should be decided without examining\nthe instrument under which it arises?\nThis is too extravagant to be maintained.\nIn some cases then, the Constitution must be looked into by the judges. And if they can open it at all,\nwhat part of it are they forbidden to read or to obey?\nThere are many other parts of the Constitution which serve to illustrate this subject.\nIt is declared that \xe2\x80\x9cno tax or duty shall be laid on articles exported from any State.\xe2\x80\x9d Suppose a duty on\nthe export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be\nrendered in such a case? ought the judges to close their eyes on the Constitution, and only see the\nlaw?\nThe Constitution declares that \xe2\x80\x9cno bill of attainder or ex post facto law shall be passed.\xe2\x80\x9d\nIf, however, such a bill should be passed and a person should be prosecuted under it, must the Court\ncondemn to death those victims whom the Constitution endeavours to preserve?\n\xe2\x80\x9cNo person,\xe2\x80\x99 says the Constitution, \xe2\x80\x98shall be convicted of treason unless on the testimony of two\nwitnesses to the same overt act, or on confession in open court.\xe2\x80\x9d\nHere the language of the Constitution is addressed especially to the Courts. It prescribes, directly\nfor them, a rule of evidence not to be departed from. If the Legislature should change that rule, and\ndeclare one witness, or a confession out of court, sufficient for conviction, must the constitutional\nprinciple yield to the legislative act?\nFrom these and many other selections which might be made, it is apparent that the framers of the\nConstitution contemplated that instrument as a rule for the government of courts, as well as of the\nLegislature.\nWhy otherwise does it direct the judges to take an oath to support it? This oath certainly applies in\nan especial manner to their conduct in their official character. How immoral to impose it on them if\nthey were to be used as the instruments, and the knowing instruments, for violating what they swear\nto support!\n68 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cThe oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative\nopinion on this subject. It is in these words:\n\xe2\x80\x9cI do solemnly swear that I will administer justice without respect to persons, and do equal\nright to the poor and to the rich; and that I will faithfully and impartially discharge all the\nduties incumbent on me as according to the best of my abilities and understanding, agreeably\nto the Constitution and laws of the United States.\xe2\x80\x9d\nWhy does a judge swear to discharge his duties agreeably to the Constitution of the United States if\nthat Constitution forms no rule for his government? if it is closed upon him and cannot be inspected\nby him?\nIf such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath\nbecomes equally a crime.\nIt is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the\nland, the Constitution itself is first mentioned, and not the laws of the United States generally, but\nthose only which shall be made in pursuance of the Constitution, have that rank.\nThus, the particular phraseology of the Constitution of the United States confirms and strengthens\nthe principle, supposed to be essential to all written Constitutions, that a law repugnant to the\nConstitution is void, and that courts, as well as other departments, are bound by that instrument.\nThe rule must be discharged.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=32#h5p-46\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=32#h5p-47\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=32#h5p-48\n\nCHAPTER TWO: Introduction to Constitutional Interpretation and Judicial Review | 69\n\n\x0cNotes\n1. Marbury is not an easy case, in part because of Chief Justice Marshall\xe2\x80\x99s style. There are many issues\nin the case and the order in which they are presented is not necessarily logical. But the central feature\nof the case is the Supreme Court\xe2\x80\x99s power, including the \xe2\x80\x9cpower\xe2\x80\x9d that Congress sought to confer on\nthe Court by \xc2\xa7 13 of the Judiciary Act of 1789:\nAnd be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all\ncontroversies of a civil nature, where a state is a party, except between a state and its citizens;\nand except also between a state and citizens of other states, or aliens, in which latter case it\nshall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction\nof suits or proceedings against ambassadors, or other public ministers, or their domestics, or\ndomestic servants, as a court of law can have or exercise consistently with the law of nations;\nand original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public\nministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in\nthe Supreme Court, in all actions at law against citizens of the United States, shall be by jury.\nThe Supreme Court shall also have appellate jurisdiction from the circuit courts and courts\nof the several states, in the cases herein after specially provided for; and shall have power to\nissue writs of prohibition to the district courts, when proceeding as courts of admiralty and\nmaritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages\nof law, to any courts appointed, or persons holding office, under the authority of the United\nStates.\nBe prepared to articulate the Court\xe2\x80\x99s holding regarding the statute.\n2. While Chief Justice Marshall alludes to the \xe2\x80\x9cpeculiar delicacy\xe2\x80\x9d of the case, that is not apparent\nfrom the opinion. The underlying events start with the election of 1800, a contentious election in\nthe early history of the United States, marking the rise of political parties. The Federalist party had\nbeen in power, led by John Adams who had lost his re-election for President to Thomas Jefferson, a\nRepublican-Democrat.\nJohn Marshall served as the Secretary of State under Adams. When John Jay declined an offer to\nresume his position as Chief Justice, Adams nominated Marshall to be the new Chief Justice of the\nUnited States Supreme Court. Marshall assumed his position on the Supreme Court on February 4,\n1801, and continued to simultaneously serve as Adams\xe2\x80\x99 Secretary of State until March 4, 1801, when\nThomas Jefferson was inaugurated as President.\nDuring Adams\xe2\x80\x99 last days in office, he worked to fill the numerous new judicial vacancies created by\nthe lame-duck Congress. Many commentators believe the Federalist\xe2\x80\x99s goal was to take control of the\njudicial branch, having lost power in the executive and legislative branches.\nMarbury filed his original action before the United States Supreme Court in December 1801. In those\n70 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cearly days of the Court, the docket was small and the Court should have been able to decide the case\npromptly. However, the new Congress had abolished the June and December 1802 Terms of the Court\nand had repealed the Judiciary Act of 1801, which returned the Supreme Court Justices to the busy\ntask of \xe2\x80\x9ccircuit-riding.\xe2\x80\x9d Thus, the Court did not hear Marbury v. Madison until 1803.\n3. Scholars have argued that Marbury v. Madison did not \xe2\x80\x9cestablish\xe2\x80\x9d judicial review. For example,\nWilliam Michael Treanor, in Judicial Review Before Marbury, 58 Stan.L.Rev. 455, 457-58 (2005),\nexamines thirty-one pre-Marbury cases in which a statute was invalidated and seven additional cases\nin which, although the statute was upheld, one judge concluded that the statute was unconstitutional.\nThe United States Supreme Court itself had previously invalidated a Virginia statute in Ware v. Hylton,\n3 U.S. (3 Dall.) 199 (1796), known as the British Debt Case, as inconsistent with the Treaty of Paris.\n(The Virginia statute had sought to nullify Revolutionary War debts which the treaty had agreed were\nenforceable). In Federalist No. 78, attributed to Alexander Hamilton, there is an argument for judicial\nreview including the proposition that the United States Supreme Court would be the ultimate arbiter\nof the Constitution. Note that in Marbury, Chief Justice Marshall implies that judicial review is an\ninherent feature of the judiciary.\nNevertheless, Marbury is generally cited as the landmark case establishing judicial review. As such, it\ncould be cited by courts whenever they are considering the constitutionality of government actions,\nbut in fact it is cited only occasionally. Consider what circumstances cause a court (or a litigant) to\ncite Marbury v. Madison.\n\nFurther Your Understanding\nCALI Lesson: Marbury v. Madison\nCALI, The Center for Assisted Legal Instruction, has a lesson designed to assist and further your\nunderstanding of Marbury v. Madison and its relevance. The above-linked lesson includes 25 questions\nand should take 30 \xe2\x80\x93 45 minutes to complete.\n\nIII. Constitutional Interpretation\nThe question of how courts should interpret the constitution \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x93 and the question of how we might\nunderstand judicial opinions and construct legal arguments \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x93 is a vexed one. There are many types\nof constitutional theories, but below is a broad outline.\nCHAPTER TWO: Introduction to Constitutional Interpretation and Judicial Review | 71\n\n\x0cA. Originalist Theories\nOriginalist theories generally look to the \xe2\x80\x9cframers\xe2\x80\x9d of the Constitution to derive meaning. Different\ntypes of originalist theories include:\nTextualism: Centers the words of the Constitution. Questions include whether the specific phrase\nhas a plain meaning. Broader questions include inquiry into the Constitution as a whole: surrounding\ncontent; repeat of the words elsewhere in the Constitution; absent words.\nOriginal intent: Focuses on the framers of the specific phrase. What did they intend.\nOriginal meaning: Broader than original intent, considers what persons at the time would have\nunderstood by the specific phrase.\nOriginal purpose: Broader than original intent, considers what the framers of the \xe2\x80\x9cultimately\xe2\x80\x9d meant,\neven if they did not have a specific intent that governs the problem under consideration.\n\nB. Pragmatic Theories\nPragmatic theories, sometimes also called legal process theories, generally consider the place of the\ncourts in a democracy. The two major types of this theory take somewhat opposing perspectives:\nRepresentation-Reinforcement: Championed by John Hart Ely in his famous work Democracy and\nDistrust, this theory focuses on the role of the unelected federal judicial branch in a democracy. It\nposits that the role of the courts should be to \xe2\x80\x9creinforce\xe2\x80\x9d representative democracy by preventing a\ntyranny of the majority and thus, ultimately, to forestall violent uprisings by minorities.\nPassive Virtues: Championed by Alexander Bickel in his famous work The Least Dangerous Branch,\nthis theory also focuses on the role of the unelected federal judiciary in a democracy. However, it\nposits that the role of the courts should be to exercise restraint and allow the democratic process to\n\xe2\x80\x9cwork itself out\xe2\x80\x9d lest the judiciary itself be compromised. Courts should not decide controversies too\nearly and should always decide controversies on the narrowest grounds possible.\n\nC. Evolutive Theories\nEvolutive theories generally posit that the Constitution should \xe2\x80\x9cevolve.\xe2\x80\x9d Under this view, the past may\nbe a guide but should not be determinative. Types of evolutive theory include:\nLiving Constitutionalism: This theory posits that constitutional meaning evolves and it is subject to\nreinterpretation by each generation. Justice Stephen Breyer has been a strong advocate of this theory,\nmost notably in his 2005 book, Active Liberty: Interpreting Our Democratic Constitution.\nCritical Theories: Like living constitutionalism, these theories advocate for a progressive\n72 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cinterpretation, but often from a specific vantage point. For example, Critical Race Theory would\nadvocate that the Constitution enshrined slavery and white supremacy, so present interpretive\nstrategies should attempt to reject that legacy. Similarly, Critical Feminist Theory would advocate that\nthe Constitution erases women and preserves patriarchy, so present interpretive strategies should\nattempt to reject that legacy. There are also queer, dis/ability, class-based, Native, and other theories.\nPopular Constitutionalism: This theory calls for de-centering the judiciary and advocates recognizing\nhow \xe2\x80\x9caverage people\xe2\x80\x9d today understand and enact constitutional norms.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=32#h5p-45\n\nNotes\n1. The late Justice Antonin Scalia, well-known as an orginalist, and Justice Stephen Breyer, advocating\nliving constitutionalism both wrote books advocating their positions and together participated in\nmany public conversations and debates about their respective constitutional interpretative\nphilosophies.\n2. Regarding originalist interpretative strategies, consider what type of documentary evidence would\nbe used in making arguments about intent, meaning, and purpose.\n3. Judicial activism and judicial restraint overlap with constitutional theories, but theories do not\nnecessarily coincide with \xe2\x80\x9cactivist\xe2\x80\x9d or \xe2\x80\x9crestrained\xe2\x80\x9d outcomes.\nAt its most basic, an activist constitutional decision elevates a judicial determination over a\ndemocratic one: it declares the \xe2\x80\x9cstate action\xe2\x80\x9d unconstitutional. Likewise, at its most basic, when a\ncourt practices judicial restraint, it allows the democratically-enacted government action to stand.\nNote also that activist/restrained decisions do not necessarily coincide with \xe2\x80\x9cliberal\xe2\x80\x9d or \xe2\x80\x9cconservative\xe2\x80\x9d\noutcomes.\n\nCHAPTER TWO: Introduction to Constitutional Interpretation and Judicial Review | 73\n\n\x0cCHAPTER THREE: Slavery and Racial\nEquality\nI. Constitutional Equality Before the Reconstruction Amendments\nRecall that although the notion of equality is in the Declaration of Independence, it is not in the\nArticles of Confederation or the Constitution before the Reconstruction Amendments.\nDespite the Constitution\xe2\x80\x99s Preamble, \xe2\x80\x9cWe the People,\xe2\x80\x9d generally speaking, people who counted as\n\xe2\x80\x9cpeople\xe2\x80\x9d in the Constitution were white and male.\nAs for women, despite Abigail Adams\xe2\x80\x99 well-known letter to her husband John Adams at the Continental\nCongress in 1776 to \xe2\x80\x9cRemember the Ladies,\xe2\x80\x9d the Declaration of Independence, Articles of\nConfederation, and pre-Reconstruction Constitution do not address sex/gender, implicitly assuming\na male political body despite a population of roughly 50% women.\nAs for Native Americans, the Constitution recognizes the sovereignty of Indian Tribes, explicitly in\nArticle I, \xc2\xa7 8, cl. 3, which gives Congress (rather than states) the power to \xe2\x80\x9cregulate commerce\xe2\x80\x9d with\n\xe2\x80\x9cthe Indian Tribes\xe2\x80\x9d and implicitly in Article VI, the Supremacy Clause, which declares the Constitution\nsupreme, also provides that treaties entered into by the United States \xe2\x80\x9cshall be the supreme Law of\nthe Land.\xe2\x80\x9d (In 1789, there were at least 9 treaties with Indian nations.)\nMost contentious in the Constitution was the status of enslaved persons. The 1789 Constitution\nenshrined slavery, albeit without ever using the term. Despite the absence of the word, the socalled compromise among the framers of the Constitution regarding slavery appears in a number of\nprovisions.\nOne of most well-known compromises also implicates women and Native Americans, as well as\nfederal-state relations (federalism) and democracy (another term that does not appear in the\nConstitution).\nArticle I \xc2\xa7 2 cl. 3, regarding representation in the House of Representatives of Congress, provides:\nRepresentatives and direct Taxes shall be apportioned among the several States which may be\nincluded within this Union, according to their respective Numbers, which shall be determined\nby adding to the whole Number of free Persons, including those bound to Service for a Term\nof Years, and excluding Indians not taxed, three fifths of all other Persons.\nThis provision itself was itself a compromise regarding how representation among the states in the\nHouse of Representatives should be apportioned. The competing proposition was that representation\nshould be linked to commerce or taxes paid to the federal government; this would essentially be\nrepresentation of states based on their wealth.\n74 | CHAPTER THREE: Slavery and Racial Equality\n\n\x0cOnce it was decided it should be people rather than money, however, the question was which people\nshould be counted.\nThe initial proposal was that population should be \xe2\x80\x9cthe whole number of white & other free Citizens\nand inhabitants of every age sex & condition including those bound to servitude for a term of years\nand three fifths of all other persons not comprehended in the foregoing description, except Indians\npaying taxes, in each state.\xe2\x80\x9d Supposedly for stylistic reasons, \xe2\x80\x9cevery age sex & condition\xe2\x80\x9d was omitted.\nAs applied, women (and children) were counted as part of the population.\nThe provision explicitly excluded \xe2\x80\x9cIndians not taxed\xe2\x80\x9d from being counted in the population to be\nrepresented in the House of Representatives of Congress. This assumes that Indians who did not\nreside on sovereign tribal lands would pay taxes and be part of the population.\nThe inclusion of all persons who were free (even if not white) or indentured for a term of years\nin the population calculation recognized both free people of color and all indentured servants.\nNote that indentured servants were usually Europeans who had obtained passage to the United\nStates. Sometimes this passage was as punishment for a crime or as a release from debtors\xe2\x80\x99 prison.\nSometimes persons bought passage for economic advancement or personal reasons; sometimes\npersons were assigned passage by their families. Indentured servants were to work without pay for a\nset period, often 7 years, although the term could be extended for infractions including minor crimes,\ninadequate service, or pregnancy. During the time of servitude one could not \xe2\x80\x9cquit,\xe2\x80\x9d but one was\nconsidered a servant and not property (chattel) and after the term ended one was a free person.\nThe \xe2\x80\x9cthree fifths of all other Persons\xe2\x80\x9d portion of Article I \xc2\xa7 2 cl. 3 is the most infamous. \xe2\x80\x9cAll other\npersons\xe2\x80\x9d meant enslaved persons. In general, the Northern states in which slavery was minimal\nwanted slaves to not count as persons; the Southern states in which enslaved persons were a majority\nof the population wanted slaves to be counted as full persons. This may seem paradoxical, but what\nwas at stake was how large the number of representatives in Congress would be. The compromise was\nthat each enslaved person would be counted as \xe2\x80\x9cthree-fifths\xe2\x80\x9d of a person when calculating the total\npopulation as a basis for representation.\nGouverneur Morris (who despite his first name was never governor but was later a United States\nSenator from New York) famously excoriated such a compromise during the Constitutional\nConvention: \xe2\x80\x9cUpon what principle is it that the slaves shall be computed in the representation? Are\nthey men? Then make them Citizens & let them vote? Are they property? Why then is no other\nproperty included?\xe2\x80\x9d\nHowever, the presumptive author of Federalist Paper No. 54 James Madison argued that the\nConstitution was correct to view \xe2\x80\x9cour slaves\xe2\x80\x9d as possessing \xe2\x80\x9cthe mixed character of persons and\nof property.\xe2\x80\x9d Madison contended that this was \xe2\x80\x9cin fact their true character,\xe2\x80\x9d although it was not\nnecessarily a natural one: \xe2\x80\x9cit is only under the pretext that the laws have transformed the negroes into\nsubjects of property, that a place is disputed them in the computation of numbers; and it is admitted,\nthat if the laws were to restore the rights which have been taken away, the negroes could no longer\nbe refused an equal share of representation with the other inhabitants.\xe2\x80\x9d\n\nCHAPTER THREE: Slavery and Racial Equality | 75\n\n\x0cIn addition to Article I \xc2\xa7 2 cl. 3, several other provisions in the 1789 Constitution recognized slavery,\nagain without using the term.\nFirst, Article I, \xc2\xa7 9, cl. 1 and Article V guaranteed the importation of slaves into the United States until\n1808.\nArticle I, \xc2\xa7 9, cl. 1, prohibited Congress from acting. It provided that \xe2\x80\x9cThe Migration or Importation\nof such Persons as any of the States now existing shall think proper to admit, shall not be prohibited\nby the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be\nimposed on such Importation, not exceeding ten dollars for each Person.\xe2\x80\x9d\nArticle V, regarding amendments to the Constitution, exempted Article I, \xc2\xa7 9, cl. 1 from the amendment\nprocess until then.\nNote that Congress did pass the Act Prohibiting Importation of Slaves of 1807, signed (and\nchampioned) by President Thomas Jefferson, which became effective January 1, 1808.\nSecond, Article IV mandated the recognition of slave status by all states. Article IV is best known\nfor requiring states to give \xe2\x80\x9cfull faith and credit\xe2\x80\x9d to the proceedings of other states and to grant \xe2\x80\x9call\nprivileges and immunities\xe2\x80\x9d to citizens of other states, but it also contained the so-called Fugitive Slave\nClause. It provided that: \xe2\x80\x9cNo Person held to Service or Labour in one State, under the Laws thereof,\nescaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from\nsuch Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or\nLabour may be due.\xe2\x80\x9d\nLastly, and perhaps most obliquely, the Article I, \xc2\xa7 8 powers of Congress include \xe2\x80\x9ccalling forth the\nMilitia to execute the Laws of the Union, suppress Insurrections and repel Invasions,\xe2\x80\x9d implying the\npossibility of slave or other rebellions.\n\nII. Litigating Slavery and Equality Before the Reconstruction Amendments\nPrigg v. Pennsylvania\n41 U.S. (16 Pet.) 539 (1842)\nMR. JUSTICE STORY DELIVERED THE OPINION OF THE COURT.\nThis is a writ of error to the Supreme Court of Pennsylvania . . . in a case involving the construction of\nthe Constitution and laws of the United States.\nThe facts are briefly these: The plaintiff in error {Edward Prigg} was indicted in * * * * York County\n{Pennsylvania} for having, with force and violence, taken and carried away from that county, to the\nState of Maryland, a certain negro woman, named Margaret Morgan, with a design and intention\n76 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cof selling and disposing of, and keeping her, as a slave or servant for life, contrary to a statute of\nPennsylvania, passed on the 26th of March, 1826. That statute, in the first section, in substance\nprovides that, if any person or persons shall, from and after the passing of the act, by force and\nviolence, take and carry away, or cause to be taken and carried away, and shall, by fraud or false\npretence, seduce, or cause to be seduced, or shall attempt to take, carry away or seduce, any negro or\nmulatto from any part of that Commonwealth, with a design and intention of selling and disposing of,\nor causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro\nor mulatto, as a slave or servant for life, or for any term whatsoever, every such person or persons,\nhis or their aiders or abettors, shall, on conviction thereof, be deemed guilty of felony, and shall forfeit\nand pay a sum not less than five hundred, nor more than one thousand dollars, and moreover shall\nbe sentenced to undergo servitude for any term or terms of years, not less than seven years nor\nexceeding twenty-one years, and shall be confined and kept to hard labor, &c.\nThere are many other provisions in the statute, which is recited at large in the record but to which it\nis in our view unnecessary to advert upon the present occasion.\nThe plaintiff in error pleaded not guilty to the indictment, and, at the trial, the jury found a special\nverdict which in substance states that the negro woman, Margaret Morgan, was a slave for life, and\nheld to labor and service under and according to the laws of Maryland, to a certain Margaret Ashmore,\na citizen of Maryland; that the slave escaped and fled from Maryland into Pennsylvania in 1832; that\nthe plaintiff in error, being legally constituted the agent and attorney of the said Margaret Ashmore,\nin 1837 caused the said negro woman to be taken and apprehended as a fugitive from labor by a\nstate constable under a warrant from a Pennsylvania magistrate; that the said negro woman was\nthereupon brought before the said magistrate, who refused to take further cognizance of the case;\nand thereupon the plaintiff in error did remove, take and carry away the said negro woman and her\nchildren out of Pennsylvania into Maryland, and did deliver the said negro woman and her children\ninto the custody and possession of the said Margaret Ashmore. The special verdict further finds that\none of the children was born in Pennsylvania more than a year after the said negro woman had fled\nand escaped from Maryland.\nUpon this special verdict, the Court of Oyer and Terminer of York County adjudged that the plaintiff\nin error was guilty of the offense charged in the indictment. A writ of error was brought from that\njudgment to the Supreme Court of Pennsylvania, where the judgment was, pro forma, affirmed. From\nthis latter judgment, the present writ of error has been brought to this Court. * * * *\nThe question arising in the case as to the constitutionality of the statute of Pennsylvania, has been\nmost elaborately argued at the bar. The counsel for the plaintiff in error have contended that the\nstatute of Pennsylvania is unconstitutional, first, because Congress has the exclusive power of\nlegislation upon the subject matter under the Constitution of the United States and under the act\nof the 12th of February 1793, ch. 51 {the federal Fugitive Slave Act} which was passed in pursuance\nthereof; secondly, that, if this power is not exclusive in Congress, still the concurrent power of the\nstate legislatures is suspended by the actual exercise of the power of Congress; and thirdly, that,\nif not suspended, still the statute of Pennsylvania, in all its provisions applicable to this case, is in\ndirect collision with the act of Congress, and therefore, is unconstitutional and void. The counsel for\nPennsylvania maintain the negative of all those points.\nCHAPTER THREE: Slavery and Racial Equality | 77\n\n\x0cFew questions which have ever come before this Court involve more delicate and important\nconsiderations, and few upon which the public at large may be presumed to feel a more profound\nand pervading interest. We have accordingly given them our most deliberate examination, and it\nhas become my duty to state the result to which we have arrived, and the reasoning by which it is\nsupported.\nBefore, however, we proceed to the points more immediately before us, it may be well, in order to\nclear the case of difficulty, to say that, in the exposition of this part of the Constitution, we shall limit\nourselves to those considerations which appropriately and exclusively belong to it, without laying\ndown any rules of interpretation of a more general nature. It will indeed probably be found, when we\nlook to the character of the Constitution itself, the objects which it seeks to attain, the powers which\nit confers, the duties which it enjoins, and the rights which it secures, as well as the known historical\nfact, that many of its provisions were matters of compromise of opposing interests and opinions, that\nno uniform rule of interpretation can be applied to it which may not allow, even if it does not positively\ndemand, many modifications in its actual application to particular clauses. And perhaps the safest\nrule of interpretation, after all, will be found to be to look to the nature and objects of the particular\npowers, duties, and rights with all the lights and aids of contemporary history, and to give to the words\nof each just such operation and force, consistent with their legitimate meaning, as may fairly secure\nand attain the ends proposed.\nThere are two clauses in the Constitution upon the subject of fugitives, which stands in juxtaposition\nwith each other and have been thought mutually to illustrate each other. They are both contained in\nthe second section of the fourth Article, and are in the following words:\n\xe2\x80\x9cA person charged in any State with treason, felony, or other crime who shall flee from justice\nand be found in another State shall, on demand of the executive authority of the State from\nwhich he fled, be delivered up, to be removed to the State having jurisdiction of the crime.\xe2\x80\x9d\n\xe2\x80\x9cNo person held to service or labor in one State, under the laws thereof, escaping into another,\nshall, in consequence of any law or regulation therein, be discharged from such service or\nlabor, but shall be delivered up on claim of the party to whom such service or labor may be\ndue.\xe2\x80\x9d\nThe last clause is that the true interpretation whereof is directly in judgment before us. Historically,\nit is well known that the object of this clause was to secure to the citizens of the slave-holding States\nthe complete right and title of ownership in their slaves, as property, in every State in the Union\ninto which they might escape from the State where they were held in servitude. The full recognition\nof this right and title was indispensable to the security of this species of property in all the slaveholding States, and indeed was so vital to the preservation of their domestic interests and institutions\nthat it cannot be doubted that it constituted a fundamental article without the adoption of which the\nUnion could not have been formed. Its true design was to guard against the doctrines and principles\nprevalent in the non-slaveholding States, by preventing them from intermeddling with, or obstructing,\nor abolishing the rights of the owners of slaves.\nBy the general law of nations, no nation is bound to recognize the state of slavery as to foreign slaves\n78 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cfound within its territorial dominions, when it is in opposition to its own policy and institutions,\nin favor of the subjects of other nations where slavery is recognized. If it does it, it is as a matter\nof comity, and not as a matter of international right. The state of slavery is deemed to be a mere\nmunicipal regulation, founded upon and limited to the range of the territorial laws. * * * It is manifest\nfrom this consideration that, if the Constitution had not contained this clause, every non-slaveholding\nState in the Union would have been at liberty to have declared free all runaway slaves coming\nwithin its limits, and to have given them entire immunity and protection against the claims of their\nmasters\xe2\x80\x94a course which would have created the most bitter animosities and engendered perpetual\nstrife between the different States. The clause was therefore of the last importance to the safety and\nsecurity of the southern States, and could not have been surrendered by them, without endangering\ntheir whole property in slaves. The clause was accordingly adopted into the Constitution by the\nunanimous consent of the framers of it\xe2\x80\x94a proof at once of its intrinsic and practical necessity.\nHow then are we to interpret the language of the clause? The true answer is in such a manner as,\nconsistently with the words, shall fully and completely effectuate the whole objects of it. * * * The\nclause manifestly contemplates the existence of a positive, unqualified right on the part of the owner\nof the slave which no state law or regulation can in any way qualify, regulate, control, or restrain. The\nslave is not to be discharged from service or labor in consequence of any state law or regulation. Now\ncertainly, without indulging in any nicety of criticism upon words, it may fairly and reasonably be said\nthat any state law or state regulation which interrupts, limits, delays, or postpones the right of the\nowner to the immediate possession of the slave and the immediate command of his service and labor\noperates pro tanto a discharge of the slave therefrom. The question can never be how much the slave\nis discharged from, but whether he is discharged from any, by the natural or necessary operation of\nstate laws or state regulations. The question is not one of quantity or degree, but of withholding or\ncontrolling the incidents of a positive and absolute right.\nWe have said that the clause contains a positive and unqualified recognition of the right of the owner\nin the slave, unaffected by any state law or legislation whatsoever, because there is no qualification\nor restriction of it to be found therein, and we have no right to insert any which is not expressed and\ncannot be fairly implied. Especially are we estopped from so doing when the clause puts the right to\nthe service or labor upon the same ground, and to the same extent, in every other State as in the State\nfrom which the slave escaped and in which he was held to the service or labor. If this be so, then all the\nincidents to that right attach also. The owner must, therefore, have the right to seize and repossess\nthe slave, which the local laws of his own State confer upon him, as property, and we all know that this\nright of seizure and recaption is universally acknowledged in all the slaveholding States. Indeed, this\nis no more than a mere affirmance of the principles of the common law applicable to this very subject.\n****\nUpon this ground, we have not the slightest hesitation in holding that, under and in virtue of the\nConstitution, the owner of a slave is clothed with entire authority, in every State in the Union, to seize\nand recapture his slave whenever he can do it without any breach of the peace or any illegal violence.\nIn this sense and to this extent, this clause of the Constitution may properly be said to execute itself,\nand to require no aid from legislation, state or national.\nBut the clause of the Constitution does not stop here, nor, indeed, consistently with its professed\nCHAPTER THREE: Slavery and Racial Equality | 79\n\n\x0cobjects, could it do so. * * * And this leads us to the consideration of the other part of the clause,\nwhich implies at once a guarantee and duty. It says, \xe2\x80\x9cbut he [the slave] shall be delivered up on claim\nof the party to whom such service or labor may be due.\xe2\x80\x9d {note: brackets in original} Now we think it\nexceedingly difficult, if not impracticable, to read this language and not to feel that it contemplated\nsome further remedial redress than that which might be administered at the hands of the owner\nhimself. A claim is to be made! What is a claim? It is, in a just juridical sense, a demand of some matter,\nas of right, made by one person upon another, to do or to forbear to do some act or thing as a matter\nof duty. * * *\nThe slave is to be delivered up on the claim. By whom to be delivered up? In what mode to be delivered\nup? How, if a refusal takes place, is the right of delivery to be enforced? Upon what proofs? What shall\nbe the evidence of a rightful recaption or delivery? When and under what circumstances shall the\npossession of the owner, after it is obtained, be conclusive of his right, so as to preclude any further\ninquiry or examination into it by local tribunals or otherwise, while the slave, in possession of the\nowner, is in transitu to the State from which he fled?\nThese and many other questions will readily occur upon the slightest attention to the clause; and it\nis obvious that they can receive but one satisfactory answer. They require the aid of legislation to\nprotect the right, to enforce the delivery, and to secure the subsequent possession of the slave. If,\nindeed, the Constitution guaranties the right, and if it requires the delivery upon the claim of the\nowner (as cannot well be doubted), the natural inference certainly is that the National Government\nis clothed with the appropriate authority and functions to enforce it. The fundamental principle,\napplicable to all cases of this sort, would seem to be that, where the end is required, the means are\ngiven; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part\nof the functionaries to whom it is entrusted. The clause is found in the National Constitution, and\nnot in that of any State. It does not point out any state functionaries, or any state action, to carry\nits provisions into effect. The States cannot, therefore, be compelled to enforce them, and it might\nwell be deemed an unconstitutional exercise of the power of interpretation to insist that the States\nare bound to provide means to carry into effect the duties of the National Government, nowhere\ndelegated or entrusted to them by the Constitution. On the contrary, the natural, if not the necessary,\nconclusion is, that the National Government, in the absence of all positive provisions to the contrary,\nis bound, through its own proper departments, legislative, judicial or executive, as the case may\nrequire, to carry into effect all the rights and duties imposed upon it by the Constitution. * * * *\nThe remaining question is whether the power of legislation upon this subject is exclusive in the\nNational Government or concurrent in the States until it is exercised by Congress. In our opinion, it is\nexclusive * * * *\nIt is scarcely conceivable that the slaveholding States would have been satisfied with leaving to the\nlegislation of the non-slaveholding States a power of regulation, in the absence of that of Congress,\nwhich would or might practically amount to a power to destroy the rights of the owner. * * * *\nThese are some of the reasons, but by no means all, upon which we hold the power of legislation on\nthis subject to be exclusive in Congress. To guard, however, against any possible misconstruction of\nour views, it is proper to state that we are by no means to be understood in any manner whatsoever\n80 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cto doubt or to interfere with the police power belonging to the States in virtue of their general\nsovereignty. That police power extends over all subjects within territorial limits of the States, and\nhas never been conceded to the United States. It is wholly distinguishable from the right and duty\nsecured by the provision now under consideration, which is exclusively derived from and secured by\nthe Constitution of the United States and owes its whole efficacy thereto. We entertain no doubt\nwhatsoever that the States, in virtue of their general police power, possesses full jurisdiction to arrest\nand restrain runaway slaves, and remove them from their borders, and otherwise to secure themselves\nagainst their depredations and evil example, as they certainly may do in cases of idlers, vagabonds and\npaupers. The rights of the owners of fugitive slaves are in no just sense interfered with or regulated by\nsuch a course, and, in many cases, the operations of this police power, although designed generally for\nother purposes\xe2\x80\x94for protection, safety and peace of the State\xe2\x80\x94may essentially promote and aid the\ninterests of the owners. But such regulations can never be permitted to interfere with or to obstruct\nthe just rights of the owner to reclaim his slave, derived from the Constitution of the United States, or\nwith the remedies prescribed by Congress to aid and enforce the same.\nUpon these grounds, we are of opinion that the act of Pennsylvania upon which this indictment is\nfounded is unconstitutional and void. It purports to punish as a public offense against that State the\nvery act of seizing and removing a slave by his master which the Constitution of the United States was\ndesigned to justify and uphold. The special verdict finds this fact, and the state courts have rendered\njudgment against the plaintiff in error upon that verdict. That judgment must, therefore, be reversed,\nand the cause remanded to the Supreme Court of Pennsylvania with directions to carry into effect the\njudgment of this Court rendered upon the special verdict, in favor of the plaintiff in error.\n{THE SEPARATE CONCURRING OPINIONS OF CHIEF JUSTICE TANEY, AND JUSTICES THOMPSON, WAYNE, DANIEL, AND\nMCLEAN ARE OMITTED.}\n\nScott v. Sandford\n60 US (19 How.) 393 (1857)\n{Dred Scott, his wife Harriet, and his daughters, Eliza and Lizzie, were slaves conveyed as property to\nthe defendant, John Sanford, whose name is mistakenly spelled in the case with an extra \xe2\x80\x9cd.\xe2\x80\x9d In 1834,\nScott\xe2\x80\x99s former slaveowner, an Army surgeon named Emerson, had taken him from Missouri, where\nslavery was legal, to Illinois, where slavery was not legal. They then traveled to Fort Snelling in nowMinnesota (Wisconsin Territory) which had been part Louisiana Purchase, and was north of 36\xc2\xb0 30\xe2\x80\x99, an\narea in which slavery was forbidden by the Missouri Compromise, codified as Act of March 6, 1820, 3\nStat. 545. Dred Scott had married Harriet Scott in Fort Snelling. There were also travels to Louisiana.\nEmerson brought them back to Missouri and then \xe2\x80\x9csold and conveyed\xe2\x80\x9d the Scotts to Sanford. More\nspecific facts from the Opinion are in the Notes.\nScott sued on behalf of himself and his family for freedom based on the argument that residence in\na free state and free territory had conferred freedom. He won in a state trial court in Missouri, but\nthe Missouri supreme court reversed. He then brought suit in federal court (the \xe2\x80\x9cplea in abatement\xe2\x80\x9d)\nCHAPTER THREE: Slavery and Racial Equality | 81\n\n\x0cagainst Sanford, who had moved to New York, on the basis of diversity jurisdiction, allowed in the\nConstitution by Art. III \xc2\xa7 2, which requires that the lawsuit be \xe2\x80\x9cbetween Citizens of different States.\xe2\x80\x9d\nOn a writ of error, from an adverse judgment, Dred Scott appealed to the Supreme Court.}\nMR. CHIEF JUSTICE TANEY DELIVERED THE OPINION OF THE COURT.\n* * * * The question is simply this: Can a negro, whose ancestors were imported into this country, and\nsold as slaves, become a member of the political community formed and brought into existence by the\nConstitution of the United States, and as such become entitled to all the rights, and privileges, and\nimmunities, guarantied {sic} by that instrument to the citizen? One of which rights is the privilege of\nsuing in a court of the United States in the cases specified in the Constitution.\nIt will be observed that the plea applies to that class of persons only whose ancestors were negroes\nof the African race, and imported into this country and sold and held as slaves. The only matter in\nissue before the court, therefore, is, whether the descendants of such slaves, when they shall be\nemancipated, or who are born of parents who had become free before their birth, are citizens of a\nState in the sense in which the word \xe2\x80\x9ccitizen\xe2\x80\x9d is used in the Constitution of the United States. And\nthis being the only matter in dispute on the pleadings, the court must be understood as speaking in\nthis opinion of that class only, that is, of those persons who are the descendants of Africans who were\nimported into this country and sold as slaves.\nThe situation of this population was altogether unlike that of the Indian race. The latter, it is true,\nformed no part of the colonial communities, and never amalgamated with them in social connections\nor in government. But although they were uncivilized, they were yet a free and independent people,\nassociated together in nations or tribes and governed by their own laws. * * * *\nThe words \xe2\x80\x9cpeople of the United States\xe2\x80\x9d and \xe2\x80\x9ccitizens\xe2\x80\x9d are synonymous terms, and mean the same\nthing. They both describe the political body who, according to our republican institutions, form the\nsovereignty and who hold the power and conduct the Government through their representatives.\nThey are what we familiarly call the \xe2\x80\x9csovereign people,\xe2\x80\x9d and every citizen is one of this people, and\na constituent member of this sovereignty. The question before us is whether the class of persons\ndescribed in the plea in abatement compose a portion of this people, and are constituent members\nof this sovereignty? We think they are not, and that they are not included, and were not intended to\nbe included, under the word \xe2\x80\x9ccitizens\xe2\x80\x9d in the Constitution, and can therefore claim none of the rights\nand privileges which that instrument provides for and secures to citizens of the United States. On the\ncontrary, they were at that time considered as a subordinate and inferior class of beings who had been\nsubjugated by the dominant race, and, whether emancipated or not, yet remained subject to their\nauthority, and had no rights or privileges but such as those who held the power and the Government\nmight choose to grant them.\nIt is not the province of the court to decide upon the justice or injustice, the policy or impolicy,\nof these laws. The decision of that question belonged to the political or lawmaking power, to those\nwho formed the sovereignty and framed the Constitution. The duty of the court is to interpret the\n\n82 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cinstrument they have framed with the best lights we can obtain on the subject, and to administer it as\nwe find it, according to its true intent and meaning when it was adopted.\nIn discussing this question, we must not confound the rights of citizenship which a State may confer\nwithin its own limits and the rights of citizenship as a member of the Union. It does not by any means\nfollow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of\nthe United States. He may have all of the rights and privileges of the citizen of a State and yet not be\nentitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the\nConstitution of the United States, every State had the undoubted right to confer on whomsoever it\npleased the character of citizen, and to endow him with all its rights. But this character, of course, was\nconfined to the boundaries of the State, and gave him no rights or privileges in other States beyond\nthose secured to him by the laws of nations and the comity of States. Nor have the several States\nsurrendered the power of conferring these rights and privileges by adopting the Constitution of the\nUnited States. Each State may still confer them upon an alien, or anyone it thinks proper, or upon any\nclass or description of persons, yet he would not be a citizen in the sense in which that word is used\nin the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the\nprivileges and immunities of a citizen in the other States. The rights which he would acquire would\nbe restricted to the State which gave them. The Constitution has conferred on Congress the right to\nestablish an uniform rule of naturalization, and this right is evidently exclusive, and has always been\nheld by this court to be so. Consequently, no State, since the adoption of the Constitution, can, by\nnaturalizing an alien, invest him with the rights and privileges secured to a citizen of a State under\nthe Federal Government, although, so far as the State alone was concerned, he would undoubtedly be\nentitled to the rights of a citizen and clothed with all the rights and immunities which the Constitution\nand laws of the State attached to that character. * * * * *\nThis brings us to examine by what provision of the Constitution the present Federal Government,\nunder its delegated and restricted powers, is authorized to acquire territory outside of the original\nlimits of the United States, and what powers it may exercise therein over the person or property of\na citizen of the United States while it remains a Territory and until it shall be admitted as one of the\nStates of the Union. * * * *\nNow, as we have already said in an earlier part of this opinion upon a different point, the right of\nproperty in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like\nan ordinary article of merchandise and property, was guarantied to the citizens of the United States in\nevery State that might desire it for twenty years. And the Government in express terms is pledged to\nprotect it in all future time if the slave escapes from his owner. This is done in plain words\xe2\x80\x94too plain\nto be misunderstood. And no word can be found in the Constitution which gives Congress a greater\npower over slave property or which entitles property of that kind to less protection that property of\nany other description. The only power conferred is the power coupled with the duty of guarding and\nprotecting the owner in his rights.\nUpon these considerations, it is the opinion of the court that the act of Congress which prohibited a\ncitizen from holding and owning property of this kind in the territory of the United States north of the\nline therein mentioned is not warranted by the Constitution, and is therefore void, and that neither\n\nCHAPTER THREE: Slavery and Racial Equality | 83\n\n\x0cDred Scott himself nor any of his family were made free by being carried into this territory, even if\nthey had been carried there by the owner with the intention of becoming a permanent resident.\nWe have so far examined the case, as it stands under the Constitution of the United States, and the\npowers thereby delegated to the Federal Government.\nBut there is another point in the case which depends on State power and State law. And it is\ncontended, on the part of the plaintiff, that he is made free by being taken to Rock Island, in the State\nof Illinois, independently of his residence in the territory of the United States, and being so made free,\nhe was not again reduced to a state of slavery by being brought back to Missouri.\nOur notice of this part of the case will be very brief, for the principle on which it depends was decided\nin this court, upon much consideration, in the case of Strader et al. v. Graham, reported in 10th\nHoward 82. In that case, the slaves had been taken from Kentucky to Ohio, with the consent of the\nowner, and afterwards brought back to Kentucky. And this court held that their status or condition\nas free or slave depended upon the laws of Kentucky when they were brought back into that State,\nand not of Ohio, and that this court had no jurisdiction to revise the judgment of a State court upon\nits own laws. This was the point directly before the court, and the decision that this court had not\njurisdiction turned upon it, as will be seen by the report of the case.\nSo in this case. As Scott was a slave when taken into the State of Illinois by his owner, and was there\nheld as such, and brought back in that character, his status as free or slave depended on the laws of\nMissouri, and not of Illinois.\n* * * * But whatever doubts or opinions may at one time have been entertained upon this subject,\nwe are satisfied, upon a careful examination of all the cases decided in the State courts of Missouri\nreferred to, that it is now firmly settled by the decisions of the highest court in the State that Scott\nand his family upon their return were not free, but were, by the laws of Missouri, the property of the\ndefendant, and that the Circuit Court of the United States had no jurisdiction when, by the laws of the\nState, the plaintiff was a slave and not a citizen. * * * *\nMR. JUSTICE CURTIS, JOINED BY MR. JUSTICE MCLEAN, DISSENTING.\nI dissent from the opinion pronounced by the Chief Justice, and from the judgment which the majority\nof the court think it proper to render in this case. * * * *\nTo determine whether any free persons, descended from Africans held in slavery, were citizens of\nthe United States under the Confederation, and consequently at the time of the adoption of the\nConstitution of the United States, it is only necessary to know whether any such persons were citizens\nof either of the States under the Confederation, at the time of the adoption of the Constitution. Of this\nthere can be no doubt. At the time of the ratification of the Articles of Confederation, all free nativeborn inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North\nCarolina, though descended from African slaves, were not only citizens of those States, but such of\nthem as had the other necessary qualifications possessed the franchise of electors, on equal terms\nwith other citizens. ***\n84 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cIt has been often asserted that the Constitution was made exclusively by and for the white race. It has\nalready been shown that, in five of the thirteen original States, colored persons then possessed the\nelective franchise, and were among those by whom the Constitution was ordained and established. If\nso, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And\nthat it was made exclusively for the white race is, in my opinion, not only an assumption not warranted\nby anything in the Constitution, but contradicted by its opening declaration that it was ordained and\nestablished by the people of the United States, for themselves and their posterity. And as free colored\npersons were then citizens of at least five States, and so in every sense part of the people of the\nUnited States, they were among those for whom and whose posterity the Constitution was ordained\nand established. * * * *\nI dissent, therefore, from that part of the opinion of the majority of the court, in which it is held that\na person of African descent cannot be a citizen of the United States; and I regret I must go further,\nand dissent both from what I deem their assumption of authority to examine the constitutionality of\nthe act of Congress commonly called the Missouri Compromise act, and the grounds and conclusions\nannounced in their opinion. Having first decided that they were bound to consider the sufficiency of\nthe plea to the jurisdiction of the Circuit Court, and having decided that this plea showed that the\nCircuit Court had no jurisdiction, and consequently that this is a case to which the judicial power\nof the United States does not extend, they have gone on to examine the merits of the case as they\nappeared on the trial before the court and jury, on the issues joined on the pleas in bar, and so have\nreached the question of the power of Congress to pass the act of 1820. On so grave a subject as this,\nI feel obliged to say that, in my opinion, such an exertion of judicial power transcends the limits of\nthe authority of the court, as described by its repeated decisions and, as I understand, acknowledged\nin this opinion of the majority of the court. * * * * Nor, in my judgment, will the position that a\nprohibition to bring slaves into a Territory deprives any one of his property without due process of\nlaw, bear examination.\n\nNotes\n1. The Court\xe2\x80\x99s opinion in what is often known as The Dred Scott Case, provides several renditions of\nthe facts at various points, including this one:\nThe case, as he himself states it, on the record brought here by his writ of error, is this:\nThe plaintiff was a negro slave, belonging to Dr. Emerson, who was a surgeon in the army of the\nUnited States. In the year 1834, he took the plaintiff from the State of Missouri to the military\npost at Rock Island, in the State of Illinois, and held him there as a slave until the month of\nApril or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said\nmilitary post at Rock Island to the military post at Fort Snelling, situate on the west bank of the\nMississippi river, in the Territory known as Upper Louisiana, acquired by the United States of\nFrance, and situate north of the latitude of thirty-six degrees thirty minutes north, and north\nof the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling from\nsaid last-mentioned date until the year 1838.\nCHAPTER THREE: Slavery and Racial Equality | 85\n\n\x0cIn the year 1835, Harriet, who is named in the second count of the plaintiff\xe2\x80\x99s declaration, was\nthe negro slave of Major Taliaferro, who belonged to the army of the United States. In that\nyear, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post, situated\nas hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and\ndelivered her as a slave, at said Fort Snelling, unto the said Dr. Emerson hereinbefore named.\nSaid Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838.\nIn the year 1836, the plaintiff and Harriet intermarried, at Fort Snelling, with the consent of\nDr. Emerson, who then claimed to be their master and owner. Eliza and Lizzie, named in the\nthird count of the plaintiff\xe2\x80\x99s declaration, are the fruit of that marriage. Eliza is about fourteen\nyears old, and was born on board the steamboat Gipsey, north of the north line of the State of\nMissouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the\nState of Missouri, at the military post called Jefferson Barracks.\nIn the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and their said\ndaughter Eliza from said Fort Snelling to the State of Missouri, where they have ever since\nresided.\nBefore the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, and\nHarriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed\nto hold them, and each of them, as slaves.\n2. There is much legal commentary about the case. For example, Paul Finkelman, Scott v. Sandford:\nThe Court\xe2\x80\x99s Most Dreadful Case and How it Changed History, 82 Chicago-Kent Law Review 3 (2006),\nrecounts the decision and provides extensive background regarding the facts, including some\nspeculation about the Scotts\xe2\x80\x99 decision to sue then (and not previously) as well as some discussion of\nthe lawyers. As Finkelman also notes, the opinions were exceedingly lengthy for that point in history:\nEach of the nine Justices on the Court wrote an opinion in the case: only one of a few\ntimes before the Civil War that this occurred. The opinions range in size from Justice Robert\nC. Grier\xe2\x80\x99s half-page concurrence to Justice Benjamin R. Curtis\xe2\x80\x99s seventy-page dissent. Chief\nJustice Taney\xe2\x80\x99s \xe2\x80\x9cOpinion of the Court\xe2\x80\x9d is fifty-four pages long. The nine opinions, along with a\nhandful of pages summarizing the lawyers\xe2\x80\x99 arguments, consume 260 pages of U.S. Reports.\nFinkelman also notes that while it is an \xe2\x80\x9cexaggeration\xe2\x80\x9d to say that Dred Scott \xe2\x80\x9ccaused\xe2\x80\x9d the Civil War,\nsurely it played a role in the timing of the war.\n3. Would you say that Dred Scott is a \xe2\x80\x9cstates\xe2\x80\x99 rights\xe2\x80\x9d opinion? What about Prigg v. Pennsylvania?\n4. Justice Curtis, joined by Justice Mclean, dissenting in Dred Scott, stated that the majority was\nincorrect to believe that the Constitution was made exclusively for the white race. In support of their\nconclusion that the Constitution was not made exclusively for the white race, what do the dissenting\njustices rely upon?\n\n86 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cIII. The Reconstruction Amendments: full text\nAMENDMENT XIII\nPassed by Congress January 31, 1865. Ratified December 6, 1865.\nSection 1.\nNeither slavery nor involuntary servitude, except as a punishment for crime whereof the party\nshall have been duly convicted, shall exist within the United States, or any place subject to\ntheir jurisdiction.\nSection 2.\nCongress shall have power to enforce this article by appropriate legislation.\nAMENDMENT XIV\nPassed by Congress June 13, 1866. Ratified July 9, 1868.\nSection 1.\nAll persons born or naturalized in the United States, and subject to the jurisdiction thereof,\nare citizens of the United States and of the State wherein they reside. No State shall make\nor enforce any law which shall abridge the privileges or immunities of citizens of the United\nStates; nor shall any State deprive any person of life, liberty, or property, without due process\nof law; nor deny to any person within its jurisdiction the equal protection of the laws.\nSection 2.\nRepresentatives shall be apportioned among the several States according to their respective\nnumbers, counting the whole number of persons in each State, excluding Indians not taxed.\nBut when the right to vote at any election for the choice of electors for President and VicePresident of the United States, Representatives in Congress, the Executive and Judicial officers\nof a State, or the members of the Legislature thereof, is denied to any of the male inhabitants\nof such State, being twenty-one years of age, and citizens of the United States, or in any\nway abridged, except for participation in rebellion, or other crime, the basis of representation\ntherein shall be reduced in the proportion which the number of such male citizens shall bear\nto the whole number of male citizens twenty-one years of age in such State.\nSection 3.\nNo person shall be a Senator or Representative in Congress, or elector of President and VicePresident, or hold any office, civil or military, under the United States, or under any State, who,\nhaving previously taken an oath, as a member of Congress, or as an officer of the United States,\nor as a member of any State legislature, or as an executive or judicial officer of any State, to\nsupport the Constitution of the United States, shall have engaged in insurrection or rebellion\nCHAPTER THREE: Slavery and Racial Equality | 87\n\n\x0cagainst the same, or given aid or comfort to the enemies thereof. But Congress may by a vote\nof two-thirds of each House, remove such disability.\nSection 4.\nThe validity of the public debt of the United States, authorized by law, including debts incurred\nfor payment of pensions and bounties for services in suppressing insurrection or rebellion,\nshall not be questioned. But neither the United States nor any State shall assume or pay any\ndebt or obligation incurred in aid of insurrection or rebellion against the United States, or any\nclaim for the loss or emancipation of any slave; but all such debts, obligations and claims shall\nbe held illegal and void.\nSection 5.\nThe Congress shall have the power to enforce, by appropriate legislation, the provisions of this\narticle.\n\nAMENDMENT XV\nPassed by Congress February 26, 1869. Ratified February 3, 1870.\nSection 1.\nThe right of citizens of the United States to vote shall not be denied or abridged by the United\nStates or by any State on account of race, color, or previous condition of servitude.\nSection 2.\nThe Congress shall have the power to enforce this article by appropriate legislation.\n\nCheck Your Understanding\nLet\xe2\x80\x99s consider how the Reconstruction Amendments changed the Constitution and the Court\xe2\x80\x99s\ninterpretations of it in Prigg v. Pennsylvania and Scott v. Sandford.\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=33#h5p-49\n\n88 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=33#h5p-50\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=33#h5p-51\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=33#h5p-52\n\nIV. Early Cases Applying the Reconstruction Amendments\nStrauder v. West Virginia\n100 U.S. 303 (1880)\nMR. JUSTICE STRONG DELIVERED THE OPINION OF THE COURT.\nThe plaintiff in error, a colored man, was indicted for murder in the Circuit Court of Ohio County in\nWest Virginia, on the 20th of October, 1874, and, upon trial, was convicted and sentenced. The record\nwas then removed to the Supreme Court of the State, and there the judgment of the Circuit Court was\naffirmed. The present case is a writ of error to that court, and it is now, in substance, averred that, at\nthe trial in the State court, the defendant (now plaintiff in error) was denied rights to which he was\nentitled under the Constitution and laws of the United States.\nIn the Circuit Court of the State, before the trial of the indictment was commenced, the defendant\npresented his petition, verified by his oath, praying for a removal of the cause into the Circuit Court\nof the United States, assigning, as ground for the removal, that,\nby virtue of the laws of the State of West Virginia, no colored man was eligible to be a member\nof the grand jury or to serve on a petit jury in the State; that white men are so eligible, and\nthat, by reason of his being a colored man and having been a slave, he had reason to believe,\nCHAPTER THREE: Slavery and Racial Equality | 89\n\n\x0cand did believe, he could not have the full and equal benefit of all laws and proceedings in the\nState of West Virginia for the security of his person as is enjoyed by white citizens, and that\nhe had less chance of enforcing in the courts of the State his rights on the prosecution, as a\ncitizen of the United States, and that the probabilities of a denial of them to him as such citizen\non every trial which might take place on the indictment in the courts of the State were much\nmore enhanced than if he was a white man.\nThis petition was denied by the State court, and the cause was forced to trial.\n* * * *The law of the State to which reference was made in the petition for removal and in the several\nmotions was enacted on the 12th of March, 1873 (Acts of 1878, p. 102), and it is as follows:\nAll white male persons who are twenty-one year of age and who are citizens of this State shall\nbe liable to serve as jurors, except as herein provided.\n* * * * In this court, several errors have been assigned, and the controlling question underlying them\nall are, first, whether, by the Constitution and laws of the United States, every citizen of the United\nStates has a right to a trial of an indictment against him by a jury selected and impaneled without\ndiscrimination against his race or color, because of race or color, and, second, if he has such a right\nand is denied its enjoyment by the State in which he is indicted, may he cause the case to be removed\ninto the Circuit Court of the United States?\nIt is to be observed that the first of these questions is not whether a colored man, when an indictment\nhas been preferred against him, has a right to a grand or a petit jury composed in whole or in part of\npersons of his own race or color, but it is whether, in the composition or selection of juror by whom\nhe is to be indicted or tried, all persons of his race or color may be excluded by law solely because of\ntheir race or color, so that by no possibility can any colored man sit upon the jury.\nThe questions are important, for they demand a construction of the recent amendment of the\nConstitution. If the defendant has a right to have a jury selected for the trial of his case without\ndiscrimination against all persons of his race or color, because of their race or color, the right, if\nnot created, is protected by those amendments and the legislation of Congress under them. The\nFourteenth Amendment ordains that\nall persons born or naturalized in the United States and subject to the jurisdiction thereof\nare citizens of the United States and of the State wherein they reside. No State shall make\nor enforce any laws which shall abridge the privilege or immunities of citizens of the United\nStates, nor shall any State deprive any person of life, liberty, or property without due process\nof law, nor deny to any person within its jurisdiction the equal protection of the laws.\nThis is one of a series of constitutional provisions having a common purpose\xe2\x80\x94namely, securing to\na race recently emancipated, a race that, through many generations, had been held in slavery, all\nthe civil rights that the superior race enjoy. The true spirit and meaning of the amendments, as we\nsaid in the Slaughterhouse Cases, cannot be understood without keeping in view the history of the\ntimes when they were adopted and the general objects they plainly sought to accomplish. At the time\nwhen they were incorporated into the Constitution, it required little knowledge of human nature\n90 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cto anticipate that those who had long been regarded as an inferior and subject race would, when\nsuddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and\nthat State laws might be enacted or enforced to perpetuate the distinctions that had before existed.\ndiscriminations against them had been habitual. It was well known that, in some States, laws making\nsuch discrimination then existed, and others might well be expected. The colored race, as a race,\nwas abject and ignorant, and in that condition was unfitted to command the respect of those who\nhad superior intelligence. Their training had left them mere children, and, as such, they needed the\nprotection which a wise government extend to those who are unable to protect themselves. They\nespecially needed protection against unfriendly action in the States where they were resident. It\nwas in view of these considerations the Fourteenth Amendment was framed and adopted. It was\ndesigned to assure to the colored race the enjoyment of all the civil rights that, under the law, are\nenjoyed by white persons, and to give to that race the protection of the general government in that\nenjoyment whenever it should be denied by the States. It not only gave citizenship and the privileges\nof citizenship to persons of color, but it denied to any State the power to withhold from them\nthe equal protection of the laws, and authorized Congress to enforce its provisions by appropriate\nlegislation. * * * *\nIf this is the spirit and meaning of the amendment, whether it means more or not, it is to be construed\nliberally to carry out the purposes of its framers. It ordains that no State shall make or enforce\nany laws which shall abridge the privileges or immunities of citizens of the United States (evidently\nreferring to the newly made citizens, who, being citizens of the United States, are declared to be\nalso citizens of the State in which they reside). It ordains that no State shall deprive any person of\nlife, liberty, or property without due process of law, or deny to any person within its jurisdiction the\nequal protection of the laws. What is this but declaring that the law in the States shall be the same\nfor the black as for the white; that all persons, whether colored or white, shall stand equal before\nthe laws of the States, and, in regard to the colored race, for whose protection the amendment was\nprimarily designed, that no discrimination shall be made against them bar law because of their color?\nThe words of the amendment, it is true, are prohibitory, but they contain a necessary implication\nof a positive immunity, or right, most valuable to the colored race\xe2\x80\x94the right to exemption from\nunfriendly legislation against them distinctively as colored\xe2\x80\x94exemption from legal discriminations,\nimplying inferiority in civil society, lessening the security of their enjoyment of the rights which others\nenjoy, and discriminations which are steps towards reducing them to the condition of a subject race.\nThat the West Virginia statute respecting juries\xe2\x80\x94the statute that controlled the selection of the grand\nand petit jury in the case of the plaintiff in error\xe2\x80\x94is such a discrimination ought not to be doubted.\nNor would it be if the persons excluded by it were white men. If, in those States where the colored\npeople constitute a majority of the entire population, a law should be enacted excluding all white\nmen from jury service, thus denying to them the privilege of participating fully with the blacks in the\nadministration of justice, we apprehend no one would be heard to claim that it would not be a denial to\nwhite men of the equal protection of the laws. Nor, if a law should be passed excluding all naturalized\nCeltic Irishmen, would there be any doubt of its inconsistency with the spirit of the amendment. The\nvery fact that colored people are singled out and expressly denied by a statute all right to participate\nin the administration of the law as jurors because of their color, though they are citizens and may be in\nother respects fully qualified, is practically a brand upon them affixed by the law, an assertion of their\nCHAPTER THREE: Slavery and Racial Equality | 91\n\n\x0cinferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of\nthe race that equal justice which the law aims to secure to all others.\nThe right to a trial by jury is guaranteed to every citizen of West Virginia by the Constitution of that\nState, and the constitution of juries is a very essential part of the protection such a mode of trial\nis intended to secure. The very idea of a jury is a body of men composed of the peers or equals of\nthe person whose rights it is selected or summoned to determine\xe2\x80\x94that is, of his neighbors, fellows,\nassociates, persons having the same legal status in society as that which he holds. Blackstone, in his\nCommentaries, says,\nThe right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the\ngrand bulwark of his liberties, and is secured to him by the Great Charter {The Magna Carta}.\nIt is also guarded by statutory enactments intended to make impossible what Mr. {Jeremy} Bentham\ncalled \xe2\x80\x9cpacking juries.\xe2\x80\x9d It is well known that prejudices often exit against particular classes in the\ncommunity which sway the judgment of jurors and which therefore operate in some cases to deny\nto persons of those classes the full enjoyment of that protection which others enjoy. Prejudice in\na local community is held to be a reason for a change of venue. The framers of the constitutional\namendment must have known full well the existence of such prejudice and its likelihood to continue\nagainst the manumitted slaves and their race, and that knowledge was doubtless a motive that led\nto the amendment. By their manumission and citizenship, the colored race became entitled to the\nequal protection of the laws of the States in which they resided, and the apprehension that, through\nprejudice, they might be denied that equal protection, that is, that there might be discrimination\nagainst them, was the inducement to bestow upon the national government the power to enforce the\nprovision that no State shall deny to them the equal protection of the laws. Without the apprehended\nexistence of prejudice, that portion of the amendment would have been unnecessary, and it might\nhave been left to the States to extend equality of protection.\nIn view of these considerations, it is hard to see why the statute of West Virginia should not be\nregarded as discriminating against a colored man when he is put upon trial for an alleged criminal\noffence against the State. It is not easy to comprehend how it can be said that, while every white\nman is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected\nwithout discrimination against his color, and a negro is not, the latter is equally protected by the law\nwith the former. Is not protection of life and liberty against race or color prejudice a right, a legal right,\nunder the constitutional amendment? And how can it be maintained that compelling a colored man to\nsubmit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded\nevery man of his race, because of color alone, however well qualified in other respects, is not a denial\nto him of equal legal protection?\nWe do not say that, within the limits from which it is not excluded by the amendment, a State\nmay not prescribe the qualifications of its jurors, and, in so doing, make discriminations. It may\nconfine the selection to males, to freeholders, to citizens, to persons within certain ages, or to\npersons having educational qualifications. We do not believe the Fourteenth Amendment was ever\nintended to prohibit this. Looking at its history, it is clear it had no such purpose. Its aim was against\ndiscrimination because of race or color. As we have said more than once, its design was to protect an\n92 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cemancipated race, and to strike down all possible legal discriminations against those who belong to it.\n****\nThe Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It\nspeaks in general terms, and those are as comprehensive as possible. Its language is prohibitory,\nbut every prohibition implies the existence of rights and immunities, prominent among which is an\nimmunity from inequality of legal protection either for life, liberty, or property. Any State action that\ndenies this immunity to a colored man is in conflict with the Constitution.\nConcluding, therefore, that the statute of West Virginia, discriminating in the selection of jurors, as it\ndoes, against negroes because of their color, amounts to a denial of the equal protection of the laws to\na colored man when he is put upon trial for an alleged offence against the State * * * {the Court then\ndiscussed the procedure of removal to federal court}.\nThere was error, therefore, in proceeding to the trial of the indictment against him after his petition\nwas filed as also in overruling his challenge to the array of the jury and in refusing to quash the panel.\nThe judgment of the Supreme Court of West Virginia will be reversed, and the case remitted with\ninstructions to reverse the judgment of the Circuit Court of Ohio county, and it is\nSo ordered.\nFIELD, J., DISSENTING OPINION\nI dissent from the judgment of the court in this case on the grounds stated in my opinion in Ex parte\nVirginia {see Note 1}, and Mr. Justice Clifford concurs with me.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=33#h5p-92\n\nNotes\n1. West Virginia v. Strauder is the most famous of the three cases decided by the Court on March 1,\n\nCHAPTER THREE: Slavery and Racial Equality | 93\n\n\x0c1880, each considering the unconstitutionality of the exclusion of Black males from juries as well as a\nfederal statute providing remedies for such exclusion.\nIn Ex Parte Virginia, 100 U.S. 339 (1880), the Court had before it the indictment and arrest of a judge\nwho \xe2\x80\x9cdid then and there exclude and fail to select as grand and petit jurors certain citizens of said\ncounty of Pittsylvania, of African race and black color, said citizens possessing all other qualifications\nprescribed by law, and being by him excluded from the jury lists made out by him as such judge, on\naccount of their race, color, and previous condition of servitude, and for no other reason, against\nthe peace and dignity of the United States, and against the form of the statute of the United States\nin such case made and provided.\xe2\x80\x9d At issue in Ex Parte Virginia was whether the statute was within\nCongressional power under the Fourteenth Amendment. The Court, in an opinion again by Justice\nWilliam Strong, held it was, concluding that the judge could be punished:\nWe do not perceive how holding an office under a State, and claiming to act for the State,\ncan relieve the holder from obligation to obey the Constitution of the United States, or take\naway the power of Congress to punish his disobedience. We do not perceive how holding an\noffice under a State, and claiming to act for the State, can relieve the holder from obligation to\nobey the Constitution of the United States, or take away the power of Congress to punish his\ndisobedience.\nIn Virginia v. Rives, 100 U.S. 313 (1880), the question again involved the Congressional civil rights\nstatute, but this time focused on a provision allowing for removal of a trial from state court to federal\ncourt when \xe2\x80\x9cany person who is denied or cannot enforce in the judicial tribunals of the State\xe2\x80\x9d \xe2\x80\x9cany\nright secured to him by any law providing for the equal civil rights of citizens of the United States.\xe2\x80\x9d Yet\nthe Court, in an opinion again by Justice William Strong, found that the allegations of the defendants\nin the murder trial did not warrant removal:\nThe assertions in the petition for removal, that the grand jury by which the petitioners were\nindicted, as well as the jury summoned to try them, were composed wholly of the white race,\nand that their race had never been allowed to serve as jurors in the county of Patrick {Virginia}\nin any case in which a colored man was interested, fall short of showing that any civil right\nwas denied, or that there had been any discrimination against the defendants because of their\ncolor or race. The facts may have been as stated, and yet the jury which indicted them, and the\npanel summoned to try them, may have been impartially selected.\nCan you discern the difference between Strauder, Ex Parte Virginia, and Virginia v. Rives? Comparing\nthese three cases of 1880, is there a theoretical perspective familiar from our study of \xe2\x80\x9cstate action\ndoctrine,\xe2\x80\x9d including the Civil Rights Cases, decided a few later in 1883?\n2. Interestingly, West Virginia was formed when the western portions of Virginia, essentially seceded\nfrom Virginia when Virginia voted for the Ordinance of Secession from the United States and joined\nthe Confederate States of America in 1861. West Virginia, whose proposed named had been Kanawha,\nwas admitted to the Union as a state in June 1863, but only after it provided for the emancipation\nfrom slavery. After the Civil War ended and Virginia re-entered the United States, Virginia sued West\nVirginia regarding the creation of West Virginia and the specific inclusion of particular counties. Note\n94 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cthat Article IV, Section 3, of the Constitution provides that \xe2\x80\x9cno new States shall be formed or erected\nwithin the Jurisdiction of any other State \xe2\x80\xa6 without the Consent of the Legislatures of the States\nconcerned as well as of the Congress.\xe2\x80\x9d The United States Supreme Court ruled for West Virginia in\nVirginia v. West Virginia, 78 U.S. 39 (1871). Why might this history be illuminating given the facts of\nStrauder?\n\nPlessy v. Ferguson\n163 U.S. 537 (1896)\nMR. JUSTICE BROWN, AFTER STATING THE CASE, DELIVERED THE OPINION OF THE COURT.\nThis case turns upon the constitutionality of an act of the General Assembly of the State of Louisiana,\npassed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No.\n111, p. 152.\nThe first section of the statute enacts\nthat all railway companies carrying passengers in their coaches in this State shall provide\nequal but separate accommodations for the white and colored races by providing two or\nmore passenger coaches for each passenger train, or by dividing the passenger coaches by a\npartition so as to secure separate accommodations: Provided, That this section shall not be\nconstrued to apply to street railroads. No person or persons, shall be admitted to occupy seats\nin coaches other than the ones assigned to them on account of the race they belong to.\nBy the second section, it was enacted\nthat the officers of such passenger trains shall have power and are hereby required to assign\neach passenger to the coach or compartment used for the race to which such passenger\nbelongs; any passenger insisting on going into a coach or compartment to which by race\nhe does not belong shall be liable to a fine of twenty-five dollars, or in lieu thereof to\nimprisonment for a period of not more than twenty days in the parish prison, and any officer\nof any railroad insisting on assigning a passenger to a coach or compartment other than the\none set aside for the race to which said passenger belongs shall be liable to a fine of twentyfive dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the\nparish prison; and should any passenger refuse to occupy the coach or compartment to which\nhe or she is assigned by the officer of such railway, said officer shall have power to refuse to\ncarry such passenger on his train, and for such refusal neither he nor the railway company\nwhich he represents shall be liable for damages in any of the courts of this State.\nThe third section provides penalties for the refusal or neglect of the officers, directors, conductors,\nand employees of railway companies to comply with the act, with a proviso that \xe2\x80\x9cnothing in this act\n\nCHAPTER THREE: Slavery and Racial Equality | 95\n\n\x0cshall be construed as applying to nurses attending children of the other race.\xe2\x80\x9d The fourth section is\nimmaterial.\nThe information filed in the criminal District Court charged in substance that Plessy, being a\npassenger between two stations within the State of Louisiana, was assigned by officers of the\ncompany to the coach used for the race to which he belonged, but he insisted upon going into a coach\nused by the race to which he did not belong. Neither in the information nor plea was his particular\nrace or color averred. The petition for the writ of prohibition averred that petitioner was seveneighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible\nin him, and that he was entitled to every right, privilege and immunity secured to citizens of the\nUnited States of the white race; and that, upon such theory, he took possession of a vacant seat in a\ncoach where passengers of the white race were accommodated, and was ordered by the conductor\nto vacate said coach and take a seat in another assigned to persons of the colored race, and, having\nrefused to comply with such demand, he was forcibly ejected with the aid of a police officer, and\nimprisoned in the parish jail to answer a charge of having violated the above act.\nThe constitutionality of this act is attacked upon the ground that it conflicts both with the Thirteenth\nAmendment of the Constitution, abolishing slavery, and the Fourteenth Amendment, which prohibits\ncertain restrictive legislation on the part of the States.\n1. That it does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary\nservitude, except as a punishment for crime, is too clear for argument. Slavery implies involuntary\nservitude\xe2\x80\x94a state of bondage; the ownership of mankind as a chattel, or at least the control of the\nlabor and services of one man for the benefit of another, and the absence of a legal right to the\ndisposal of his own person, property and services. This amendment was said in the Slaughterhouse\nCases, to have been intended primarily to abolish slavery as it had been previously known in this\ncountry, and that it equally forbade Mexican peonage or the Chinese coolie trade when they amounted\nto slavery or involuntary servitude, and that the use of the word \xe2\x80\x9cservitude\xe2\x80\x9d was intended to prohibit\nthe use of all forms of involuntary slavery, of whatever class or name. It was intimated, however, in\nthat case that this amendment was regarded by the statesmen of that day as insufficient to protect\nthe colored race from certain laws which had been enacted in the Southern States, imposing upon\nthe colored race onerous disabilities and burdens and curtailing their rights in the pursuit of life,\nliberty and property to such an extent that their freedom was of little value; and that the Fourteenth\nAmendment was devised to meet this exigency.\nSo, too, in the Civil Rights Cases, it was said that the act of a mere individual, the owner of an inn,\na public conveyance or place of amusement, refusing accommodations to colored people cannot be\njustly regarded as imposing any badge of slavery or servitude upon the applicant, but only as involving\nan ordinary civil injury, properly cognizable by the laws of the State and presumably subject to redress\nby those laws until the contrary appears. \xe2\x80\x9cIt would be running the slavery argument into the ground,\xe2\x80\x9d\nsaid Mr. Justice Bradley,\nto make it apply to every act of discrimination which a person may see fit to make as to the\nguests he will entertain, or as to the people he will take into his coach or cab or car, or admit\nto his concert or theatre, or deal with in other matters of intercourse or business.\n96 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cA statute which implies merely a legal distinction between the white and colored races\xe2\x80\x94a distinction\nwhich is founded in the color of the two races and which must always exist so long as white men\nare distinguished from the other race by color\xe2\x80\x94has no tendency to destroy the legal equality of the\ntwo races, or reestablish a state of involuntary servitude. Indeed, we do not understand that the\nThirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection.\n2. By the Fourteenth Amendment, all persons born or naturalized in the United States and subject to\nthe jurisdiction thereof are made citizens of the United States and of the State wherein they reside,\nand the States are forbidden from making or enforcing any law which shall abridge the privileges or\nimmunities of citizens of the United States, or shall deprive any person of life, liberty, or property\nwithout due process of law, or deny to any person within their jurisdiction the equal protection of the\nlaws.\n****\nThe object of the amendment was undoubtedly to enforce the absolute equality of the two races\nbefore the law, but, in the nature of things, it could not have been intended to abolish distinctions\nbased upon color, or to enforce social, as distinguished from political, equality, or a commingling\nof the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their\nseparation in places where they are liable to be brought into contact do not necessarily imply the\ninferiority of either race to the other, and have been generally, if not universally, recognized as within\nthe competency of the state legislatures in the exercise of their police power. The most common\ninstance of this is connected with the establishment of separate schools for white and colored\nchildren, which has been held to be a valid exercise of the legislative power even by courts of States\nwhere the political rights of the colored race have been longest and most earnestly enforced.\n* * * * The distinction between laws interfering with the political equality of the negro and those\nrequiring the separation of the two races in schools, theatres and railway carriages has been\nfrequently drawn by this court. Thus, in Strauder v. West Virginia, it was held that a law of West\nVirginia limiting to white male persons, 21 years of age and citizens of the State, the right to sit upon\njuries was a discrimination which implied a legal inferiority in civil society, which lessened the security\nof the right of the colored race, and was a step toward reducing them to a condition of servility. * * * *\nSo far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the\nquestion whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there\nmust necessarily be a large discretion on the part of the legislature. In determining the question of\nreasonableness, it is at liberty to act with reference to the established usages, customs, and traditions\nof the people, and with a view to the promotion of their comfort and the preservation of the public\npeace and good order. Gauged by this standard, we cannot say that a law which authorizes or even\nrequires the separation of the two races in public conveyances is unreasonable, or more obnoxious to\nthe Fourteenth Amendment than the acts of Congress requiring separate schools for colored children\nin the District of Columbia, the constitutionality of which does not seem to have been questioned, or\nthe corresponding acts of state legislatures.\nWe consider the underlying fallacy of the plaintiff\xe2\x80\x99s argument to consist in the assumption that the\nCHAPTER THREE: Slavery and Racial Equality | 97\n\n\x0cenforced separation of the two races stamps the colored race with a badge of inferiority. If this be\nso, it is not by reason of anything found in the act, but solely because the colored race chooses to\nput that construction upon it. The argument necessarily assumes that if, as has been more than once\nthe case and is not unlikely to be so again, the colored race should become the dominant power in\nthe state legislature, and should enact a law in precisely similar terms, it would thereby relegate the\nwhite race to an inferior position. We imagine that the white race, at least, would not acquiesce in\nthis assumption. The argument also assumes that social prejudices may be overcome by legislation,\nand that equal rights cannot be secured to the negro except by an enforced commingling of the two\nraces. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it\nmust be the result of natural affinities, a mutual appreciation of each other\xe2\x80\x99s merits, and a voluntary\nconsent of individuals.\n****\nLegislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical\ndifferences, and the attempt to do so can only result in accentuating the difficulties of the present\nsituation. If the civil and political rights of both races be equal, one cannot be inferior to the other\ncivilly or politically. If one race be inferior to the other socially, the Constitution of the United States\ncannot put them upon the same plane. * * * *\nThe judgment of the court below is, therefore,\nAffirmed.\nMR. JUSTICE HARLAN, DISSENTING.\nBy the Louisiana statute the validity of which is here involved, * * * * no colored person is permitted to\noccupy a seat in a coach assigned to white persons, nor any white person to occupy a seat in a coach\nassigned to colored persons. The managers of the railroad are not allowed to exercise any discretion\nin the premises, but are required to assign each passenger to some coach or compartment set apart\nfor the exclusive use of his race. If a passenger insists upon going into a coach or compartment not\nset apart for persons of his race, he is subject to be fined or to be imprisoned in the parish jail.\nPenalties are prescribed for the refusal or neglect of the officers, directors, conductors and employees\nof railroad companies to comply with the provisions of the act.\nOnly \xe2\x80\x9cnurses attending children of the other race\xe2\x80\x9d are excepted from the operation of the statute. No\nexception is made of colored attendants traveling with adults. A white man is not permitted to have\nhis colored servant with him in the same coach, even if his condition of health requires the constant,\npersonal assistance of such servant. If a colored maid insists upon riding in the same coach with a\nwhite woman whom she has been employed to serve, and who may need her personal attention while\ntraveling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of\nduty.\nWhile there may be in Louisiana persons of different races who are not citizens of the United States,\nthe words in the act \xe2\x80\x9cwhite and colored races\xe2\x80\x9d necessarily include all citizens of the United States of\n98 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cboth races residing in that State. So that we have before us a state enactment that compels, under\npenalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a\ncitizen of either race to enter a coach that has been assigned to citizens of the other race.\nThus, the State regulates the use of a public highway by citizens of the United States solely upon the\nbasis of race. * * * *\nHowever apparent the injustice of such legislation may be, we have only to consider whether it is\nconsistent with the Constitution of the United States.\nIn respect of civil rights common to all citizens, the Constitution of the United States does not, I think,\npermit any public authority to know the race of those entitled to be protected in the enjoyment of\nsuch rights. Every true man has pride of race, and, under appropriate circumstances, when the rights\nof others, his equals before the law, are not to be affected, it is his privilege to express such pride\nand to take such action based upon it as to him seems proper. But I deny that any legislative body\nor judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are\ninvolved. Indeed, such legislation as that here in question is inconsistent not only with that equality\nof rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by\neveryone within the United States.\nThe Thirteenth Amendment does not permit the withholding or the deprivation of any right\nnecessarily inhering in freedom. It not only struck down the institution of slavery as previously\nexisting in the United States, but it prevents the imposition of any burdens or disabilities that\nconstitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court\nhas so adjudged. But that amendment having been found inadequate to the protection of the rights of\nthose who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to\nthe dignity and glory of American citizenship and to the security of personal liberty by declaring that\nall persons born or naturalized in the United States, and subject to the jurisdiction thereof, are\ncitizens of the United States and of the State wherein they reside,\nand that\nno State shall make or enforce any law which shall abridge the privileges or immunities of\ncitizens of the United States; nor shall any State deprive any person of life, liberty or property\nwithout due process of law, nor deny to any person within its jurisdiction the equal protection\nof the laws.\nThese two amendments, if enforced according to their true intent and meaning, will protect all the\ncivil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be\ndenied, on account of his race, the privilege of participating in the political control of his country, it as\ndeclared by the Fifteenth Amendment that\nthe right of citizens of the United States to vote shall not be denied or abridged by the United\nStates or by any State on account of race, color or previous condition of servitude.\n\nCHAPTER THREE: Slavery and Racial Equality | 99\n\n\x0cThese notable additions to the fundamental law were welcomed by the friends of liberty throughout\nthe world. They removed the race line from our governmental systems. They had, as this court has\nsaid, a common purpose, namely to secure to a race recently emancipated, a race that through many\ngenerations have been held in slavery, all the civil rights that the superior race enjoy. * * * *\nIt was said in argument that the statute of Louisiana does not discriminate against either race, but\nprescribes a rule applicable alike to white and colored citizens. But this argument does not meet the\ndifficulty. Everyone knows that the statute in question had its origin in the purpose not so much\nto exclude white persons from railroad cars occupied by blacks as to exclude colored people from\ncoaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make\ndiscrimination among whites in the matter of accommodation for travelers. The thing to accomplish\nwas, under the guise of giving equal accommodation for whites and blacks, to compel the latter to\nkeep to themselves while traveling in railroad passenger coaches. No one would be so wanting in\ncandor a to assert the contrary. * * * * If a white man and a black man choose to occupy the same\npublic conveyance on a public highway, it is their right to do so, and no government, proceeding alone\non grounds of race, can prevent it without infringing the personal liberty of each.\nIt is one thing for railroad carriers to furnish, or to be required by law to furnish, equal\naccommodations for all whom they are under a legal duty to carry. It is quite another thing for\ngovernment to forbid citizens of the white and black races from traveling in the same public\nconveyance, and to punish officers of railroad companies for permitting persons of the two races to\noccupy the same passenger coach. If a State can prescribe, as a rule of civil conduct, that whites and\nblacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of\nthe streets of its cities and towns as to compel white citizens to keep on one side of a street and black\ncitizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride\ntogether in streetcars or in open vehicles on a public road or street? Why may it not require sheriffs to\nassign whites to one side of a courtroom and blacks to the other? And why may it not also prohibit the\ncommingling of the two races in the galleries of legislative halls or in public assemblages convened for\nthe consideration of the political questions of the day? Further, if this statute of Louisiana is consistent\nwith the personal liberty of citizens, why may not the State require the separation in railroad coaches\nof native and naturalized citizens of the United States, or of Protestants and Roman Catholics?\nThe answer given at the argument to these questions was that regulations of the kind they suggest\nwould be unreasonable, and could not, therefore, stand before the law. Is it meant that the\ndetermination of questions of legislative power depends upon the inquiry whether the statute whose\nvalidity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances\ninto consideration? A statute may be unreasonable merely because a sound public policy forbade its\nenactment. But I do not understand that the courts have anything to do with the policy or expediency\nof legislation. A statute may be valid and yet, upon grounds of public policy, may well be characterized\nas unreasonable. * * * *\nThe white race deems itself to be the dominant race in this country. And so it is in prestige, in\nachievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all\ntime if it remains true to its great heritage and holds fast to the principles of constitutional liberty.\nBut in view of the Constitution, in the eye of the law, there is in this country no superior, dominant,\n100 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor\ntolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The\nhumblest is the peer of the most powerful. The law regards man as man, and takes no account of his\nsurroundings or of his color when his civil rights as guaranteed by the supreme law of the land are\ninvolved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental\nlaw of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment\nby citizens of their civil rights solely upon the basis of race.\nIn my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the\ndecision made by this tribunal in the Dred Scott Case. It was adjudged in that case that the descendants\nof Africans who were imported into this country and sold as slaves were not included nor intended to\nbe included under the word \xe2\x80\x9ccitizens\xe2\x80\x9d in the Constitution, and could not claim any of the rights and\nprivileges which that instrument provided for and secured to citizens of the United States; * * * * The\nrecent amendments of the Constitution, it was supposed, had eradicated these principles from our\ninstitutions. But it seems that we have yet, in some of the States, a dominant race\xe2\x80\x94a superior class\nof citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the\nbasis of race. The present decision, it may well be apprehended, will not only stimulate aggressions,\nmore or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage\nthe belief that it is possible, by means of state enactments, to defeat the beneficent purposes which\nthe people of the United States had in view when they adopted the recent amendments of the\nConstitution, by one of which the blacks of this country were made citizens of the United States and\nof the States in which they respectively reside, and whose privileges and immunities, as citizens, the\nStates are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of\neight millions of blacks. The destinies of the two races in this country are indissolubly linked together,\nand the interests of both require that the common government of all shall not permit the seeds of\nrace hate to be planted under the sanction of law. What can more certainly arouse race hate, what\nmore certainly create and perpetuate a feeling of distrust between these races, than state enactments\nwhich, in fact, proceed on the ground that colored citizens are so inferior and degraded that they\ncannot be allowed to sit in public coaches occupied by white citizens. That, as all will admit, is the real\nmeaning of such legislation as was enacted in Louisiana.\nThe sure guarantee of the peace and security of each race is the clear, distinct, unconditional\nrecognition by our governments, National and State, of every right that inheres in civil freedom, and\nof the equality before the law of all citizens of the United States, without regard to race. * * * *\nThere is a race so different from our own that we do not permit those belonging to it to become\ncitizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded\nfrom our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride\nin the same passenger coach with white citizens of the United States, while citizens of the black race\nin Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are\nentitled, by law, to participate in the political control of the State and nation, who are not excluded,\nby law or by reason of their race, from public stations of any kind, and who have all the legal rights\nthat belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in\na public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen\nCHAPTER THREE: Slavery and Racial Equality | 101\n\n\x0cshould not object to occupying a public coach assigned to his own race. He does not object, nor,\nperhaps, would he object to separate coaches for his race if his rights under the law were recognized.\nBut he objecting, and ought never to cease objecting, to the proposition that citizens of the white and\nblack race can be adjudged criminals because they sit, or claim the right to sit, in the same public\ncoach on a public highway.\nThe arbitrary separation of citizens on the basis of race while they are on a public highway is a badge\nof servitude wholly inconsistent with the civil freedom and the equality before the law established by\nthe Constitution. It cannot be justified upon any legal grounds.\nIf evils will result from the commingling of the two races upon public highways established for\nthe benefit of all, they will be infinitely less than those that will surely come from state legislation\nregulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our\npeople above all other peoples. But it is difficult to reconcile that boast with a state of the law which,\npractically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our\nequals before the law. The thin disguise of \xe2\x80\x9cequal\xe2\x80\x9d accommodations for passengers in railroad coaches\nwill not mislead anyone, nor atone for the wrong this day done.\n****\nI am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white\nand black, in that State, and hostile to both the spirit and letter of the Constitution of the United\nStates. If laws of like character should be enacted in the several States of the Union, the effect would\nbe in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have\ndisappeared from our country, but there would remain a power in the States, by sinister legislation,\nto interfere with the full enjoyment of the blessings of freedom to regulate civil rights, common to all\ncitizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American\ncitizens now constituting a part of the political community called the People of the United States,\nfor whom and by whom, through representatives, our government is administered. Such a system\nis inconsistent with the guarantee given by the Constitution to each State of a republican form of\ngovernment, and may be stricken down by Congressional action, or by the courts in the discharge of\ntheir solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any\nState to the contrary notwithstanding.\nFor the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the\nmajority.\n\n102 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=33#h5p-93\n\nNotes\nThe Court\xe2\x80\x99s opinion in Plessy v. Ferguson is a betrayal of the Thirteenth and Fourteenth Amendments.\nIt is a widely reviled decision that cements the end of Reconstruction and hobbles the potential for\nequality expressed in the Reconstruction Amendments.\nPlessy is no longer \xe2\x80\x9cprecedent.\xe2\x80\x9d How did that happen as a legal matter? What are the legal strategies\navailable to \xe2\x80\x9cdismantle\xe2\x80\x9d a case? This is the subject of the next chapter.\nUnderstanding the process of the legal strategies used to dismantle Plessy starts with analyzing the\ndecision itself. Answer the following questions about the opinion:\n1. What is the standard of federal judicial review of the state statute used by the Court in Plessy?\n2. What are the differing perspectives of the \xe2\x80\x9cpurpose\xe2\x80\x9d of the state statute in the majority and\ndissenting opinions?\n3. What is the Court\xe2\x80\x99s holding in Plessy?\n4. How is the notion of \xe2\x80\x9cformal equality\xe2\x80\x9d deployed in Plessy v. Ferguson in both the majority and\ndissenting opinions?\n5. What theoretical perspectives from the Civil Rights Cases, decided thirteen years earlier, are\napparent in Plessy v. Ferguson?\n6. Why does Harlan \xe2\x80\x9callude to the Chinese race\xe2\x80\x9d in the dissent?\n\nCHAPTER THREE: Slavery and Racial Equality | 103\n\n\x0cCHAPTER FOUR: Race and Equal\nProtection - Part 1\nI. Toward Strict Scrutiny\nA. Carolene Products, Footnote Four\nIt has been called the \xe2\x80\x9cmost famous footnote in Constitutional Law\xe2\x80\x9d and certainly it is the most famous\none in Equal Protection doctrine. The case in which it occurred, United States v. Carolene Products\nCompany, 304 U.S. 144 (1938), did not involve the Equal Protection Clause or racial classifications.\nInstead, at issue was a federal statute regulating the shipment of \xe2\x80\x9cfilled milk\xe2\x80\x9d (skimmed milk to which\nnonmilk fat is added so that it may seem to be like whole milk or even cream). The challenges to the\nlaw were based on a lack of Congressional power under the Commerce Clause and a Due Process\nClause of the Fifth Amendment violation.\nIn footnote four, Justice Harlan Stone wrote for the Court:\nThere may be narrower scope for operation of the presumption of constitutionality when\nlegislation appears on its face to be within a specific prohibition of the Constitution, such\nas those of the first ten Amendments, which are deemed equally specific when held to be\nembraced within the Fourteenth.\nIt is unnecessary to consider now whether legislation which restricts those political processes\nwhich can ordinarily be expected to bring about repeal of undesirable legislation, is to be\nsubjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth\nAmendment than are most other types of legislation.\nNor need we enquire whether similar considerations enter into the review of statutes directed\nat particular religious, or national, or racial minorities, whether prejudice against discrete and\ninsular minorities may be a special condition, which tends seriously to curtail the operation of\nthose political processes ordinarily to be relied upon to protect minorities, and which may call\nfor a correspondingly more searching judicial inquiry.\n\n104 | CHAPTER FOUR: Race and Equal Protection - Part 1\n\n\x0cB. The Japanese Internment Cases\n\nHirabayashi v. United States\n320 U.S. 81 (1943)\nMR. CHIEF JUSTICE STONE DELIVERED THE OPINION OF THE COURT\nAppellant, an American citizen of Japanese ancestry, was convicted in the district court of violating\nthe Act of Congress of March 21, 1942, 56 Stat. 173, 18 U.S.C. \xc2\xa7 97a, which makes it a misdemeanor\nknowingly to disregard restrictions made applicable by a military commander to persons in a military\narea prescribed by him as such, all as authorized by an Executive Order of the President.\nThe questions for our decision are whether the particular restriction violated, namely that all persons\nof Japanese ancestry residing in such an area be within their place of residence daily between\nthe hours of 8:00 p.m. and 6:00 a.m., was adopted by the military commander in the exercise of\nan unconstitutional delegation by Congress of its legislative power, and whether the restriction\nunconstitutionally discriminated between citizens of Japanese ancestry and those of other ancestries\nin violation of the Fifth Amendment. * * * *\n{The evidence showed that} appellant was born in Seattle in 1918, of Japanese parents who had come\nfrom Japan to the United States, and who had never afterward returned to Japan; that he was educated\nin the Washington public schools and at the time of his arrest was a senior in the University of\nWashington; that he had never been in Japan or had any association with Japanese residing there.\nThe evidence showed that appellant had failed to report to the Civil Control Station on May 11 or\nMay 12, 1942, as directed, to register for evacuation from the military area. He admitted failure to do\nso, and stated it had at all times been his belief that he would be waiving his rights as an American\ncitizen by so doing. The evidence also showed that for like reason he was away from his place of\nresidence after 8:00 p.m. on May 9, 1942. The jury returned a verdict of guilty on both counts and\nappellant was sentenced to imprisonment for a term of three months on each, the sentences to run\nconcurrently.* * * *\nThe curfew order which appellant violated, and to which the sanction prescribed by the Act of\nCongress has been deemed to attach, purported to be issued pursuant to an Executive Order of the\nPresident. In passing upon the authority of the military commander to make and execute the order, it\nbecomes necessary to consider in some detail the official action which preceded or accompanied the\norder and from which it derives its purported authority. * * * *\n{We therefore conclude that} Executive Order No. 9066, promulgated in time of war for the declared\npurpose of prosecuting the war by protecting national defense resources from sabotage and\nespionage, and the Act of March 21, 1942, ratifying and confirming the Executive Order, were each an\n\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 105\n\n\x0cexercise of the power to wage war conferred on the Congress and on the President, as Commander in\nChief of the armed forces, by Articles I and II of the Constitution. * * * *\nIn the critical days of March, 1942, the danger to our war production by sabotage and espionage in\nthis area seems obvious. The German invasion of the Western European countries had given ample\nwarning to the world of the menace of the \xe2\x80\x98fifth column.\xe2\x80\x99 Espionage by persons in sympathy with the\nJapanese Government had been found to have been particularly effective in the surprise attack on\nPearl Harbor. At a time of threatened Japanese attack upon this country, the nature of our inhabitants\xe2\x80\x99\nattachments to the Japanese enemy was consequently a matter of grave concern. Of the 126,000\npersons of Japanese descent in the United States, citizens and non-citizens, approximately 112,000\nresided in California, Oregon and Washington at the time of the adoption of the military regulations.\nOf these approximately two-thirds are citizens because born in the United States. Not only did the\ngreat majority of such persons reside within the Pacific Coast states but they were concentrated in or\nnear three of the large cities, Seattle, Portland and Los Angeles, all in Military Area No. 1.\nThere is support for the view that social, economic and political conditions which have prevailed\nsince the close of the last century, when the Japanese began to come to this country in substantial\nnumbers, have intensified their solidarity and have in large measure prevented their assimilation as\nan integral part of the white population. In addition, large numbers of children of Japanese parentage\nare sent to Japanese language schools outside the regular hours of public schools in the locality. Some\nof these schools are generally believed to be sources of Japanese nationalistic propaganda, cultivating\nallegiance to Japan. Considerable numbers, estimated to be approximately 10,000, of American-born\nchildren of Japanese parentage have been sent to Japan for all or a part of their education.\nCongress and the Executive, including the military commander, could have attributed special\nsignificance, in its bearing on the loyalties of persons of Japanese descent, to the maintenance by\nJapan of its system of dual citizenship. Children born in the United States of Japanese alien parents,\nand especially those children born before December 1, 1924, are under many circumstances deemed,\nby Japanese law, to be citizens of Japan. No official census of those whom Japan regards as having thus\nretained Japanese citizenship is available, but there is ground for the belief that the number is large.\nThe large number of resident alien Japanese, approximately one-third of all Japanese inhabitants of\nthe country, are of mature years and occupy positions of influence in Japanese communities. The\nassociation of influential Japanese residents with Japanese Consulates has been deemed a ready\nmeans for the dissemination of propaganda and for the maintenance of the influence of the Japanese\nGovernment with the Japanese population in this country.\nAs a result of all these conditions affecting the life of the Japanese, both aliens and citizens, in\nthe Pacific Coast area, there has been relatively little social intercourse between them and the\nwhite population. The restrictions, both practical and legal, affecting the privileges and opportunities\nafforded to persons of Japanese extraction residing in the United States, have been sources of\nirritation and may well have tended to increase their isolation, and in many instances their\nattachments to Japan and its institutions.\nViewing these data in all their aspects, Congress and the Executive could reasonably have concluded\n106 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cthat these conditions have encouraged the continued attachment of members of this group to Japan\nand Japanese institutions. * * * *\nBut appellant insists that the exercise of the power is inappropriate and unconstitutional because it\ndiscriminates against citizens of Japanese ancestry, in violation of the Fifth Amendment. The Fifth\nAmendment contains no equal protection clause and it restrains only such discriminatory legislation\nby Congress as amounts to a denial of due process. Congress may hit at a particular danger where it\nis seen, without providing for others which are not so evident or so urgent.\nDistinctions between citizens solely because of their ancestry are by their very nature odious to a\nfree people whose institutions are founded upon the doctrine of equality. For that reason, legislative\nclassification or discrimination based on race alone has often been held to be a denial of equal\nprotection. {citations omitted}. We may assume that these considerations would be controlling here\nwere it not for the fact that the danger of espionage and sabotage, in time of war and of threatened\ninvasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of\npopulations in the danger areas. Because racial discriminations are in most circumstances irrelevant\nand therefore prohibited, it by no means follows that, in dealing with the perils of war, Congress and\nthe Executive are wholly precluded from taking into account those facts and circumstances which\nare relevant to measures for our national defense and for the successful prosecution of the war, and\nwhich may in fact place citizens of one ancestry in a different category from others. * * * *\nOur investigation here does not go beyond the inquiry whether, in the light of all the relevant\ncircumstances preceding and attending their promulgation, the challenged orders and statute\nafforded a reasonable basis for the action taken in imposing the curfew. We cannot close our eyes to\nthe fact, demonstrated by experience, that in time of war residents having ethnic affiliations with an\ninvading enemy may be a greater source of danger than those of a different ancestry. Nor can we deny\nthat Congress, and the military authorities acting with its authorization, have constitutional power\nto appraise the danger in the light of facts of public notoriety. We need not now attempt to define\nthe ultimate boundaries of the war power. We decide only the issue as we have defined it\xe2\x80\x94we decide\nonly that the curfew order as applied, and at the time it was applied, was within the boundaries of the\nwar power. In this case it is enough that circumstances within the knowledge of those charged with\nthe responsibility for maintaining the national defense afforded a rational basis for the decision which\nthey made. Whether we would have made it is irrelevant. * * * *\nThe conviction under the second count is without constitutional infirmity. Hence we have no occasion\nto review the conviction on the first count since, as already stated, the sentences on the two counts\nare to run concurrently and conviction on the second is sufficient to sustain the sentence. For this\nreason also it is unnecessary to consider the Government\xe2\x80\x99s argument that compliance with the order\nto report at the Civilian Control Station did not necessarily entail confinement in a relocation center.\nAffirmed.\nMR. JUSTICE MURPHY, CONCURRING\n* * * * Distinctions based on color and ancestry are utterly inconsistent with our traditions and ideals.\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 107\n\n\x0cThey are at variance with the principles for which we are now waging war. We cannot close our eyes\nto the fact that for centuries the Old World has been torn by racial and religious conflicts and has\nsuffered the worst kind of anguish because of inequality of treatment for different groups. There was\none law for one and a different law for another. Nothing is written more firmly into our law than\nthe compact of the Plymouth voyagers to have just and equal laws. To say that any group cannot be\nassimilated is to admit that the great American experiment has failed, that our way of life has failed\nwhen confronted with the normal attachment of certain groups to the lands of their forefathers. As\na nation we embrace many groups, some of them among the oldest settlements in our midst, which\nhave isolated themselves for religious and cultural reasons.\nToday is the first time, so far as I am aware, that we have sustained a substantial restriction of the\npersonal liberty of citizens of the United States based upon the accident of race or ancestry. Under the\ncurfew order here challenged no less than 70,000 American citizens have been placed under a special\nban and deprived of their liberty because of their particular racial inheritance. In this sense it bears\na melancholy resemblance to the treatment accorded to members of the Jewish race in Germany and\nin other parts of Europe. The result is the creation in this country of two classes of citizens for the\npurposes of a critical and perilous hour\xe2\x80\x94to sanction discrimination between groups of United States\ncitizens on the basis of ancestry. In my opinion this goes to the very brink of constitutional power.\nExcept under conditions of great emergency a regulation of this kind applicable solely to citizens of a\nparticular racial extraction would not be regarded as in accord with the requirement of due process\nof law contained in the Fifth Amendment. * * * *\n\nKorematsu v. United States\n323 U.S. 214 (1944)\nMR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT\nThe petitioner, an American citizen of Japanese descent, was convicted in a federal district court for\nremaining in San Leandro, California, a \xe2\x80\x9cMilitary Area,\xe2\x80\x9d contrary to Civilian Exclusion Order No. 34\nof the Commanding General of the Western Command, U.S. Army, which directed that, after May 9,\n1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to\npetitioner\xe2\x80\x99s loyalty to the United States. The Circuit Court of Appeals affirmed and the importance of\nthe constitutional question involved caused us to grant certiorari.\nIt should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single\nracial group are immediately suspect. That is not to say that all such restrictions are unconstitutional.\nIt is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may\nsometimes justify the existence of such restrictions; racial antagonism never can.\n* * * * {In Hirabayashi, it was argued that} to apply the curfew order against none but citizens of\nJapanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race.\n108 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cTo these questions, we gave the serious consideration which their importance justified. We upheld\nthe curfew order as an exercise of the power of the government to take steps necessary to prevent\nespionage and sabotage in an area threatened by Japanese attack.\nIn the light of the principles we announced in the Hirabayashi case, we are unable to conclude that\nit was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry\nfrom the West Coast war area at the time they did. True, exclusion from the area in which one\xe2\x80\x99s home\nis located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m.\nNothing short of apprehension by the proper military authorities of the gravest imminent danger\nto the public safety can constitutionally justify either. But exclusion from a threatened area, no less\nthan curfew, has a definite and close relationship to the prevention of espionage and sabotage. The\nmilitary authorities, charged with the primary responsibility of defending our shores, concluded that\ncurfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our\nHirabayashi opinion, in accordance with Congressional authority to the military to say who should,\nand who should not, remain in the threatened areas. * * * *\nIt is said that we are dealing here with the case of imprisonment of a citizen in a concentration\ncamp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good\ndisposition towards the United States. Our task would be simple, our duty clear, were this a case\ninvolving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice.\nRegardless of the true nature of the assembly and relocation centers\xe2\x80\x94and we deem it unjustifiable\nto call them concentration camps, with all the ugly connotations that term implies\xe2\x80\x94we are dealing\nspecifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice,\nwithout reference to the real military dangers which were presented, merely confuses the issue.\nKorematsu was not excluded from the Military Area because of hostility to him or his race. He\nwas excluded because we are at war with the Japanese Empire, because the properly constituted\nmilitary authorities feared an invasion of our West Coast and felt constrained to take proper security\nmeasures, because they decided that the military urgency of the situation demanded that all citizens\nof Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress,\nreposing its confidence in this time of war in our military leaders\xe2\x80\x94as inevitably it must\xe2\x80\x94determined\nthat they should have the power to do just this. There was evidence of disloyalty on the part of\nsome, the military authorities considered that the need for action was great, and time was short. We\ncannot\xe2\x80\x94by availing ourselves of the calm perspective of hindsight\xe2\x80\x94now say that, at that time, these\nactions were unjustified.\nAffirmed.\nMR. JUSTICE FRANKFURTER, CONCURRING.\n* * * * * To find that the Constitution does not forbid the military measures now complained of does\nnot carry with it approval of that which Congress and the Executive did. That is their business, not\nours.\n\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 109\n\n\x0cMR. JUSTICE ROBERTS, DISSENTING\nI dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.\nThis is not a case of keeping people off the streets at night, as was Hirabayashi v. United States, nor\na case of temporary exclusion of a citizen from an area for his own safety or that of the community,\nnor a case of offering him an opportunity to go temporarily out of an area where his presence might\ncause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a\npunishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and\nsolely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition\ntowards the United States. * * * *\nMR. JUSTICE MURPHY, DISSENTING\nThis exclusion of \xe2\x80\x9call persons of Japanese ancestry, both alien and non-alien,\xe2\x80\x9d from the Pacific Coast\narea on a plea of military necessity in the absence of martial law ought not to be approved. Such\nexclusion goes over \xe2\x80\x9cthe very brink of constitutional power,\xe2\x80\x9d and falls into the ugly abyss of racism.\nIn dealing with matters relating to the prosecution and progress of a war, we must accord great\nrespect and consideration to the judgments of the military authorities who are on the scene and who\nhave full knowledge of the military facts. * * * *\nIt must be conceded that the military and naval situation in the spring of 1942 was such as to generate\na very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in\nthat area. The military command was therefore justified in adopting all reasonable means necessary\nto combat these dangers. In adjudging the military action taken in light of the then apparent dangers,\nwe must not erect too high or too meticulous standards; it is necessary only that the action have\nsome reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the\nexclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no\nsuch reasonable relation. And that relation is lacking because the exclusion order necessarily must\nrely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a\ndangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways.\nIt is difficult to believe that reason, logic, or experience could be marshalled in support of such an\nassumption.\nThat this forced exclusion was the result in good measure of this erroneous assumption of racial guilt,\nrather than bona fide military necessity is evidenced by the Commanding General\xe2\x80\x99s Final Report on\nthe evacuation from the Pacific Coast area. In it, he refers to all individuals of Japanese descent as\n\xe2\x80\x9csubversive,\xe2\x80\x9d as belonging to \xe2\x80\x9can enemy race\xe2\x80\x9d whose \xe2\x80\x9cracial strains are undiluted,\xe2\x80\x9d and as constituting\n\xe2\x80\x9cover 112,000 potential enemies . . . at large today\xe2\x80\x9d along the Pacific Coast. In support of this blanket\ncondemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that\nsuch individuals were generally disloyal, or had generally so conducted themselves in this area as\nto constitute a special menace to defense installations or war industries, or had otherwise, by their\nbehavior, furnished reasonable ground for their exclusion as a group.\n\n110 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cJustification for the exclusion is sought, instead, mainly upon questionable racial and sociological\ngrounds not ordinarily within the realm of expert military judgment, supplemented by certain semimilitary conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of\nJapanese ancestry are condemned because they are said to be \xe2\x80\x9ca large, unassimilated, tightly knit\nracial group, bound to an enemy nation by strong ties of race, culture, custom and religion.\xe2\x80\x9d They are\nclaimed to be given to \xe2\x80\x9cemperor worshipping ceremonies,\xe2\x80\x9d and to \xe2\x80\x9cdual citizenship.\xe2\x80\x9d Japanese language\nschools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty,\ntogether with facts as to certain persons being educated and residing at length in Japan. It is intimated\nthat many of these individuals deliberately resided \xe2\x80\x9cadjacent to strategic points,\xe2\x80\x9d thus enabling them\nto carry into execution a tremendous program of sabotage on a mass scale should any considerable\nnumber of them have been inclined to do so. * * * *\nNo adequate reason is given for the failure to treat these Japanese Americans on an individual basis\nby holding investigations and hearings to separate the loyal from the disloyal, as was done in the case\nof persons of German and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247-52. It\nis asserted merely that the loyalties of this group \xe2\x80\x9cwere unknown and time was of the essence.\xe2\x80\x9d Yet\nnearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight\nmonths went by until the last order was issued, and the last of these \xe2\x80\x9csubversive\xe2\x80\x9d persons was not\nactually removed until almost eleven months had elapsed. * * * *\nMR. JUSTICE JACKSON, DISSENTING\n* * * * Much is said of the danger to liberty from the Army program for deporting and detaining these\ncitizens of Japanese extraction. But a judicial construction of the due process clause that will sustain\nthis order is a far more subtle blow to liberty than the promulgation of the order itself. A military\norder, however unconstitutional, is not apt to last longer than the military emergency. Even during\nthat period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such\nan order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show\nthat the Constitution sanctions such an order, the Court for all time has validated the principle of\nracial discrimination in criminal procedure and of transplanting American citizens. The principle then\nlies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible\nclaim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking\nand expands it to new purposes. All who observe the work of courts are familiar with what Judge\nCardozo described as \xe2\x80\x9cthe tendency of a principle to expand itself to the limit of its logic.\xe2\x80\x9d A military\ncommander may overstep the bounds of constitutionality, and it is an incident. But if we review and\napprove, that passing incident becomes the doctrine of the Constitution. There it has a generative\npower of its own, and all that it creates will be in its own image. Nothing better illustrates this danger\nthan does the Court\xe2\x80\x99s opinion in this case. * * * *\n\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 111\n\n\x0cCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=34#h5p-53\n\nNotes\n1. Be prepared to articulate the standard(s) used by the Court in Hirabayshi and Korematsu? Is it\nreasonableness or something more \xe2\x80\x9csearching\xe2\x80\x9d as Carolene Products footnote four suggests would be\nappropriate?\n2. The cases cited in the opinions as support for the proposition that the Court has previously held\nlegislative classification on race alone violative of equal protection include Yick Wo v. Hopkins, which\nwe will discuss later, and Hill v. Texas (1942), holding the exclusion of \xe2\x80\x9cnegroes\xe2\x80\x9d in grand jury service\nin Texas violated the Equal Protection Clause.\n3. Both Gordon Hirabayshi and Fred Korematsu were active in civil rights after World War II, including\nefforts to obtain reparations and apologies and were honored by Presidential Medals of Freedom.\n\nII. Dismantling Plessy in Education\nState of Missouri ex rel. Gaines v. Canada\n305 U.S. 337 (1938)\nMR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT.\nPetitioner Lloyd Gaines, a negro, was refused admission to the School of Law of the State University\nof Missouri. Asserting that this refusal constituted a denial by the State of the equal protection of\nthe laws in violation of the Fourteenth Amendment of the Federal Constitution, petitioner brought\nthis action for mandamus to compel the curators of the University to admit him. {Note: The Registrar\nof the law school was named Cy Woodson Canada, who is the Respondent}. On final hearing, an\nalternative writ was quashed and a peremptory writ was denied by the {state} Circuit Court. The\nSupreme Court of the State affirmed the judgment. We granted certiorari.\nPetitioner is a citizen of Missouri. In August, 1935, he was graduated with the degree of Bachelor\nof Arts at the Lincoln University, an institution maintained by the State of Missouri for the higher\n112 | Liberty, Equality, and Due Process: Third Edition\n\n\x0ceducation of negroes. That University has no law school. Upon the filing of his application for\nadmission to the law school of the University of Missouri, the registrar advised him to communicate\nwith the president of Lincoln University and the latter directed petitioner\xe2\x80\x99s attention to \xc2\xa7 9622 of the\nRevised Statutes of Missouri (1929), providing as follows:\nMay arrange for attendance at university of any adjacent state-tuition fees. Pending the full\ndevelopment of the Lincoln university, the board of curators shall have the authority to\narrange for the attendance of negro residents of the state of Missouri at the university of any\nadjacent state to take any course or to study any subjects provided for at the state university of\nMissouri, and which are not taught at the Lincoln university and to pay the reasonable tuition\nfees for such attendance; provided that whenever the board of curators deem it advisable they\nshall have the power to open any necessary school or department.\nPetitioner was advised to apply to the State Superintendent of Schools for aid under that statute. It\nwas admitted on the trial that petitioner\xe2\x80\x99s \xe2\x80\x98work and credits at the Lincoln University would qualify\nhim for admission to the School of Law of the University of Missouri if he were found otherwise\neligible\xe2\x80\x99. He was refused admission upon the ground that it was \xe2\x80\x98contrary to the constitution, laws\nand public policy of the State to admit a negro as a student in the University of Missouri\xe2\x80\x99. It appears\nthat there are schools of law in connection with the state universities of four adjacent States, Kansas,\nNebraska, Iowa and Illinois, where non-resident negroes are admitted.\nThe clear and definite conclusions of the state court in construing the pertinent state legislation\nnarrow the issue. The action of the curators, who are representatives of the State in the management\nof the state university must be regarded as state action. The state constitution provides that separate\nfree public schools shall be established for the education of children of African descent (Art. 11, Sec. 3),\nand by statute separate high school facilities are supplied for colored students equal to those provided\nfor white students. While there is no express constitutional provision requiring that the white and\nnegro races be separated for the purpose of higher education, the state court on a comprehensive\nreview of the state statutes held that it was intended to separate the white and negro races for that\npurpose also. * * * *\nIn answering petitioner\xe2\x80\x99s contention that this discrimination constituted a denial of his constitutional\nright, the state court has fully recognized the obligation of the State to provide negroes with\nadvantages for higher education substantially equal to the advantages afforded to white students. The\nState has sought to fulfill that obligation by furnishing equal facilities in separate schools, a method\nthe validity of which has been sustained by our decisions. Plessy v. Ferguson. Respondents\xe2\x80\x99 counsel\nhave appropriately emphasized the special solicitude of the State for the higher education of negroes\nas shown in the establishment of Lincoln University, a state institution well conducted on a plane with\nthe University of Missouri so far as the offered courses are concerned. It is said that Missouri is a\npioneer in that field and is the only State in the Union which has established a separate university\nfor negroes on the same basis as the state university for white students. But, commendable as is that\naction, the fact remains that instruction in law for negroes is not now afforded by the State, either\nat Lincoln University or elsewhere within the State, and that the State excludes negroes from the\nadvantages of the law school it has established at the University of Missouri.\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 113\n\n\x0cIt is manifest that this discrimination, if not relieved by the provisions we shall presently discuss,\nwould constitute a denial of equal protection. * * * *\nThe state court stresses the advantages that are afforded by the law schools of the adjacent States,\nKansas, Nebraska, Iowa and Illinois, which admit non-resident negroes. * * * * We think that these\nmatters are beside the point. The basic consideration is not as to what sort of opportunities, other\nStates provide, or whether they are as good as those in Missouri, but as to what opportunities\nMissouri itself furnishes to white students and denies to negroes solely upon the ground of color. The\nadmissibility of laws separating the races in the enjoyment of privileges afforded by the State rests\nwholly upon the equality of the privileges which the laws give to the separated groups within the State.\nThe question here is not of a duty of the State to supply legal training, or of the quality of the training\nwhich it does supply, but of its duty when it provides such training to furnish it to the residents of\nthe State upon the basis of an equality of right. By the operation of the laws of Missouri a privilege\nhas been created for white law students which is denied to negroes by reason of their race. The white\nresident is afforded legal education within the State; the negro resident having the same qualifications\nis refused it there and must go outside the State to obtain it. That is a denial of the equality of legal\nright to the enjoyment of the privilege which the State has set up, and the provision for the payment\nof tuition fees in another State does not remove the discrimination.\n* * * *Manifestly, the obligation of the State to give the protection of equal laws can be performed\nonly where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal\nright must be maintained. That obligation is imposed by the Constitution upon the States severally as\ngovernmental entities, each responsible for its own laws establishing the rights and duties of persons\nwithin its borders. It is an obligation the burden of which cannot be cast by one State upon another,\nand no State can be excused from performance by what another State may do or fail to do. * * * *\nHere, petitioner\xe2\x80\x99s right was a personal one. It was as an individual that he was entitled to the equal\nprotection of the laws, and the State was bound to furnish him within its borders facilities for legal\neducation substantially equal to those which the State there afforded for persons of the white race,\nwhether or not other negroes sought the same opportunity.\n* * * *The judgment of the Supreme Court of Missouri is reversed and the cause is remanded for\nfurther proceedings not inconsistent with this opinion. It is so ordered.\nReversed and remanded.\nSEPARATE {DISSENTING} OPINION OF MR. JUSTICE MCREYNOLDS {JOINED BY MR. JUSTICE BUTLER}.\nConsidering the disclosures of the record, the Supreme Court of Missouri arrived at a tenable\nconclusion and its judgment should be affirmed. That court well understood the grave difficulties\nof the situation and rightly refused to upset the settled legislative policy of the State by directing a\nmandamus. * * * *\n\n114 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cSweatt v. Painter\n339 U.S. 629 (1950)\nMR. CHIEF JUSTICE VINSON DELIVERED THE OPINION OF THE {UNANIMOUS} COURT.\nThis case {and another} present different aspects of this general question: to what extent does the\nEqual Protection Clause of the Fourteenth Amendment limit the power of a state to distinguish\nbetween students of different races in professional and graduate education in a state university?\nBroader issues have been urged for our consideration, but we adhere to the principle of deciding\nconstitutional questions only in the context of the particular case before the Court. * * * *\nIn the instant case, petitioner filed an application for admission to the University of Texas Law School\nfor the February, 1946, term. His application was rejected solely because he is a Negro. Petitioner\nthereupon brought this suit for mandamus against the appropriate school officials, respondents here,\nto compel his admission. At that time, there was no law school in Texas which admitted Negroes.\nThe state trial court recognized that the action of the State in denying petitioner the opportunity to\ngain a legal education while granting it to others deprived him of the equal protection of the laws\nguaranteed by the Fourteenth Amendment. The court did not grant the relief requested, however,\nbut continued the case for six months to allow the State to supply substantially equal facilities. At\nthe expiration of the six months, in December, 1946, the court denied the writ on the showing that\nthe authorized university officials had adopted an order calling for the opening of a law school for\nNegroes the following February. While petitioner\xe2\x80\x99s appeal was pending, such a school was made\navailable, but petitioner refused to register therein. The Texas Court of Civil Appeals set aside the trial\ncourt\xe2\x80\x99s judgment and ordered the cause \xe2\x80\x9cremanded generally to the trial court for further proceedings\nwithout prejudice to the rights of any party to this suit.\xe2\x80\x9d\nOn remand, a hearing was held on the issue of the equality of the educational facilities at the newly\nestablished school as compared with the University of Texas Law School. Finding that the new\nschool offered petitioner \xe2\x80\x9cprivileges, advantages, and opportunities for the study of law substantially\nequivalent to those offered by the State to white students at the University of Texas,\xe2\x80\x9d the trial court\ndenied mandamus. The Court of Civil Appeals affirmed. Petitioner\xe2\x80\x99s application for a writ of error was\ndenied by the Texas Supreme Court. We granted certiorari, because of the manifest importance of the\nconstitutional issues involved.\nThe University of Texas Law School, from which petitioner was excluded, was staffed by a faculty of\nsixteen full-time and three part-time professors, some of whom are nationally recognized authorities\nin their field. Its student body numbered 850. The library contained over 65,000 volumes. Among the\nother facilities available to the students were a law review, moot court facilities, scholarship funds,\nand Order of the Coif affiliation. The school\xe2\x80\x99s alumni occupy the most distinguished positions in the\nprivate practice of the law and in the public life of the State. It may properly be considered one of the\nnation\xe2\x80\x99s ranking law schools.\n\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 115\n\n\x0cThe law school for Negroes which was to have opened in February, 1947, would have had no\nindependent faculty or library. The teaching was to be carried on by four members of the University of\nTexas Law School faculty, who were to maintain their offices at the University of Texas while teaching\nat both institutions. Few of the 10,000 volumes ordered for the library had arrived, nor was there any\nfull-time librarian. The school lacked accreditation.\nSince the trial of this case, respondents report the opening of a law school at the Texas State\nUniversity for Negroes. It is apparently on the road to full accreditation. It has a faculty of five fulltime professors; a student body of 23; a library of some 16,500 volumes serviced by a full-time staff;\na practice court and legal aid association, and one alumnus who has become a member of the Texas\nBar.\nWhether the University of Texas Law School is compared with the original or the new law school\nfor Negroes, we cannot find substantial equality in the educational opportunities offered white and\nNegro law students by the State. In terms of number of the faculty, variety of courses and opportunity\nfor specialization, size of the student body, scope of the library, availability of law review and similar\nactivities, the University of Texas Law School is superior. What is more important, the University of\nTexas Law School possesses to a far greater degree those qualities which are incapable of objective\nmeasurement but which make for greatness in a law school. Such qualities, to name but a few, include\nreputation of the faculty, experience of the administration, position and influence of the alumni,\nstanding in the community, traditions and prestige. It is difficult to believe that one who had a free\nchoice between these law schools would consider the question close.\nMoreover, although the law is a highly learned profession, we are well aware that it is an intensely\npractical one. The law school, the proving ground for legal learning and practice, cannot be effective\nin isolation from the individuals and institutions with which the law interacts. Few students and no\none who has practiced law would choose to study in an academic vacuum, removed from the interplay\nof ideas and the exchange of views with which the law is concerned. The law school to which Texas is\nwilling to admit petitioner excludes from its student body members of the racial groups which number\n85% of the population of the State and include most of the lawyers, witnesses, jurors, judges and other\nofficials with whom petitioner will inevitably be dealing when he becomes a member of the Texas\nBar. With such a substantial and significant segment of society excluded, we cannot conclude that the\neducation offered petitioner is substantially equal to that which he would receive if admitted to the\nUniversity of Texas Law School.\nIt may be argued that excluding petitioner from that school is no different from excluding white\nstudents from the new law school. This contention overlooks realities. It is unlikely that a member of\na group so decisively in the majority, attending a school with rich traditions and prestige which only\na history of consistently maintained excellence could command, would claim that the opportunities\nafforded him for legal education were unequal to those held open to petitioner. * * * *\n{P}etitioner may claim his full constitutional right: legal education equivalent to that offered by the\nState to students of other races. Such education is not available to him in a separate law school as\noffered by the State. We cannot, therefore, agree with respondents that the doctrine of Plessy v.\nFerguson (1896), requires affirmance of the judgment below. Nor need we reach petitioner\xe2\x80\x99s contention\n116 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cthat Plessy v. Ferguson should be reexamined in the light of contemporary knowledge respecting the\npurposes of the Fourteenth Amendment and the effects of racial segregation.\nWe hold that the Equal Protection Clause of the Fourteenth Amendment requires that petitioner be\nadmitted to the University of Texas Law School. The judgment is reversed, and the cause is remanded\nfor proceedings not inconsistent with this opinion.\nReversed.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=34#h5p-54\n\nBrown v. Board of Education of Topeka\n347 U.S. 483 (1954)\nMR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE {UNANIMOUS} COURT.\nThese cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are\npremised on different facts and different local conditions, but a common legal question justifies their\nconsideration together in this consolidated opinion.\nIn each of the cases, minors of the Negro race, through their legal representatives, seek the aid of\nthe courts in obtaining admission to the public schools of their community on a nonsegregated basis.\nIn each instance, they had been denied admission to schools attended by white children under laws\nrequiring or permitting segregation according to race. This segregation was alleged to deprive the\nplaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases\nother than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on\nthe so-called \xe2\x80\x9cseparate but equal\xe2\x80\x9d doctrine announced by this Court in Plessy v. Fergson. Under that\ndoctrine, equality of treatment is accorded when the races are provided substantially equal facilities,\neven though these facilities be separate. In the Delaware case, the Supreme Court of Delaware\n\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 117\n\n\x0cadhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of\ntheir superiority to the Negro schools.\nThe plaintiffs contend that segregated public schools are not \xe2\x80\x9cequal\xe2\x80\x9d and cannot be made \xe2\x80\x9cequal,\xe2\x80\x9d and\nthat hence they are deprived of the equal protection of the laws. Because of the obvious importance\nof the question presented, the Court took jurisdiction. Argument was heard in the 1952 Term, and\nreargument was heard this Term on certain questions propounded by the Court.\nReargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth\nAmendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification\nby the states, then-existing practices in racial segregation, and the views of proponents and\nopponents of the Amendment. This discussion and our own investigation convince us that, although\nthese sources cast some light, it is not enough to resolve the problem with which we are faced. At\nbest, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly\nintended them to remove all legal distinctions among \xe2\x80\x9call persons born or naturalized in the United\nStates.\xe2\x80\x9d Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the\nAmendments and wished them to have the most limited effect. What others in Congress and the state\nlegislatures had in mind cannot be determined with any degree of certainty.\nAn additional reason for the inconclusive nature of the Amendment\xe2\x80\x99s history with respect to\nsegregated schools is the status of public education at that time. In the South, the movement toward\nfree common schools, supported by general taxation, had not yet taken hold. Education of white\nchildren was largely in the hands of private groups. Education of Negroes was almost nonexistent,\nand practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law\nin some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and\nsciences, as well as in the business and professional world. It is true that public school education\nat the time of the Amendment had advanced further in the North, but the effect of the Amendment\non Northern States was generally ignored in the congressional debates. Even in the North, the\nconditions of public education did not approximate those existing today. The curriculum was usually\nrudimentary; ungraded schools were common in rural areas; the school term was but three months a\nyear in many states, and compulsory school attendance was virtually unknown. As a consequence, it\nis not surprising that there should be so little in the history of the Fourteenth Amendment relating to\nits intended effect on public education.\nIn the first cases in this Court construing the Fourteenth Amendment, decided shortly after its\nadoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro\nrace. The doctrine of separate but equal\xe2\x80\x9d did not make its appearance in this Court until 1896 in the\ncase of Plessy v. Ferguson, involving not education but transportation. American courts have since\nlabored with the doctrine for over half a century. In this Court, there have been six cases involving\nthe \xe2\x80\x9cseparate but equal\xe2\x80\x9d doctrine in the field of public education. * * * * In none of these cases was it\nnecessary to reexamine the doctrine to grant relief to the Negro plaintiff. * * * *\nIn the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are\nfindings below that the Negro and white schools involved have been equalized, or are being equalized,\nwith respect to buildings, curricula, qualifications and salaries of teachers, and other \xe2\x80\x9ctangible\xe2\x80\x9d\n118 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cfactors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in\nthe Negro and white schools involved in each of the cases. We must look instead to the effect of\nsegregation itself on public education.\nIn approaching this problem, we cannot turn the clock back to 1868, when the Amendment was\nadopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in\nthe light of its full development and its present place in American life throughout the Nation. Only\nin this way can it be determined if segregation in public schools deprives these plaintiffs of the equal\nprotection of the laws.\nToday, education is perhaps the most important function of state and local governments. Compulsory\nschool attendance laws and the great expenditures for education both demonstrate our recognition\nof the importance of education to our democratic society. It is required in the performance of our\nmost basic public responsibilities, even service in the armed forces. It is the very foundation of good\ncitizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing\nhim for later professional training, and in helping him to adjust normally to his environment. In these\ndays, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the\nopportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a\nright which must be made available to all on equal terms.\nWe come then to the question presented: Does segregation of children in public schools solely on the\nbasis of race, even though the physical facilities and other \xe2\x80\x9ctangible\xe2\x80\x9d factors may be equal, deprive the\nchildren of the minority group of equal educational opportunities? We believe that it does.\nIn Sweatt v. Painter, in finding that a segregated law school for Negroes could not provide them equal\neducational opportunities, this Court relied in large part on \xe2\x80\x9cthose qualities which are incapable of\nobjective measurement but which make for greatness in a law school.\xe2\x80\x9d * * * * Such considerations\napply with added force to children in grade and high schools. To separate them from others of similar\nage and qualifications solely because of their race generates a feeling of inferiority as to their status\nin the community that may affect their hearts and minds in a way unlikely ever to be undone. The\neffect of this separation on their educational opportunities was well stated by a finding in the Kansas\ncase by a court which nevertheless felt compelled to rule against the Negro plaintiffs: \xe2\x80\x9cSegregation\nof white and colored children in public schools has a detrimental effect upon the colored children.\nThe impact is greater when it has the sanction of the law, for the policy of separating the races is\nusually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the\nmotivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to\n[retard] the educational and mental development of negro children and to deprive them of some of\nthe benefits they would receive in a racial[ly] integrated school system.\xe2\x80\x9d Whatever may have been the\nextent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by\nmodern authority {footnote 11; see Notes}. Any language in Plessy v. Ferguson contrary to this finding\nis rejected.\nWe conclude that, in the field of public education, the doctrine of \xe2\x80\x9cseparate but equal\xe2\x80\x9d has no place.\nSeparate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and\nothers similarly situated for whom the actions have been brought are, by reason of the segregation\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 119\n\n\x0ccomplained of, deprived of the equal protection of the laws guaranteed by the Fourteenth\nAmendment. This disposition makes unnecessary any discussion whether such segregation also\nviolates the Due Process Clause of the Fourteenth Amendment.\nBecause these are class actions, because of the wide applicability of this decision, and because of\nthe great variety of local conditions, the formulation of decrees in these cases presents problems\nof considerable complexity. On reargument, the consideration of appropriate relief was necessarily\nsubordinated to the primary question\xe2\x80\x94the constitutionality of segregation in public education. We\nhave now announced that such segregation is a denial of the equal protection of the laws. In order\nthat we may have the full assistance of the parties in formulating decrees, the cases will be restored\nto the docket, * * * * for the reargument this Term The Attorney General of the United States is\nagain invited to participate. The Attorneys General of the states requiring or permitting segregation\nin public education will also be permitted to appear as amici curiae upon request to do so. * * * *\nIt is so ordered.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=34#h5p-55\n\nBolling v. Sharpe\n347 U.S. 497 (1954)\nMR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE {UNANIMOUS} COURT.\nThis case challenges the validity of segregation in the public schools of the District of Columbia. * * * *\nWe have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the\nstates from maintaining racially segregated public schools {footnote citation to Brown}. The legal\nproblem in the District of Columbia is somewhat different, however. The Fifth Amendment, which\nis applicable in the District of Columbia, does not contain an equal protection clause, as does the\nFourteenth Amendment, which applies only to the states. But the concepts of equal protection and\n120 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cdue process, both stemming from our American ideal of fairness, are not mutually exclusive. The\n\xe2\x80\x9cequal protection of the laws\xe2\x80\x9d is a more explicit safeguard of prohibited unfairness than \xe2\x80\x9cdue process\nof law,\xe2\x80\x9d and, therefore, we do not imply that the two are always interchangeable phrases. But, as this\nCourt has recognized, discrimination may be so unjustifiable as to be violative of due process.\nClassifications based solely upon race must be scrutinized with particular care, since they are\ncontrary to our traditions, and hence constitutionally suspect. {footnote citation to Korematsu}. * * * *\nAlthough the Court has not assumed to define \xe2\x80\x9cliberty\xe2\x80\x9d with any great precision, that term is not\nconfined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct\nwhich the individual is free to pursue, and it cannot be restricted except for a proper governmental\nobjective. Segregation in public education is not reasonably related to any proper governmental\nobjective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes\nan arbitrary deprivation of their liberty in violation of the Due Process Clause.\nIn view of our decision that the Constitution prohibits the states from maintaining racially segregated\npublic schools, it would be unthinkable that the same Constitution would impose a lesser duty on the\nFederal Government. We hold that racial segregation in the public schools of the District of Columbia\nis a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution. * * * *\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=34#h5p-56\n\nFurther Your Understanding\nCALI Lesson:Equal Protection and the Federal Government: Reverse Incorporation\nCALI, The Center for Assisted Legal Instruction, has a lesson designed to assist and further your\nunderstanding of an important principle articulated in Bolling v. Sharpe, the applicability of the Equal\nProtection Clause to the federal government, a constitutional doctrine often known as \xe2\x80\x9creverse\nincorporation.\xe2\x80\x9d\n\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 121\n\n\x0cBrown v. Board of Education of Topeka (Brown II)\n349 U.S. 294 (1955)\nMR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE {UNANIMOUS} COURT.\n{The Court\xe2\x80\x99s previous opinions in Brown I} declaring the fundamental principle that racial\ndiscrimination in public education is unconstitutional, are incorporated herein by reference. All\nprovisions of federal, state, or local law requiring or permitting such discrimination must yield to this\nprinciple. There remains for consideration the manner in which relief is to be accorded.* * * *\nFull implementation of these constitutional principles may require solution of varied local school\nproblems. School authorities have the primary responsibility for elucidating, assessing, and solving\nthese problems; courts will have to consider whether the action of school authorities constitutes good\nfaith implementation of the governing constitutional principles. Because of their proximity to local\nconditions and the possible need for further hearings, the courts which originally heard these cases\ncan best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to\nthose courts.\nIn fashioning and effectuating the decrees, the courts will be guided by equitable principles.\nTraditionally, equity has been characterized by a practical flexibility in shaping its remedies and by\na facility for adjusting and reconciling public and private needs. These cases call for the exercise\nof these traditional attributes of equity power. At stake is the personal interest of the plaintiffs\nin admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate\nthis interest may call for elimination of a variety of obstacles in making the transition to school\nsystems operated in accordance with the constitutional principles set forth in our May 17, 1954,\ndecision. Courts of equity may properly take into account the public interest in the elimination of\nsuch obstacles in a systematic and effective manner. But it should go without saying that the vitality of\nthese constitutional principles cannot be allowed to yield simply because of disagreement with them.\nWhile giving weight to these public and private considerations, the courts will require that the\ndefendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling.\nOnce such a start has been made, the courts may find that additional time is necessary to carry\nout the ruling in an effective manner. The burden rests upon the defendants to establish that such\ntime is necessary in the public interest and is consistent with good faith compliance at the earliest\npracticable date. To that end, the courts may consider problems related to administration, arising\nfrom the physical condition of the school plant, the school transportation system, personnel, revision\nof school districts and attendance areas into compact units to achieve a system of determining\nadmission to the public schools on a nonracial basis, and revision of local laws and regulations which\nmay be necessary in solving the foregoing problems. They will also consider the adequacy of any\nplans the defendants may propose to meet these problems and to effectuate a transition to a racially\nnondiscriminatory school system. During this period of transition, the courts will retain jurisdiction\nof these cases.\n\n122 | Liberty, Equality, and Due Process: Third Edition\n\n\x0c* * * *The cases are remanded to the District Courts to take such proceedings and enter such orders\nand decrees consistent with this opinion as are necessary and proper to admit to public schools on a\nracially nondiscriminatory basis with all deliberate speed the parties to these cases. * * * *\nIt is so ordered.\n\nNotes\n1. Be prepared to articulate the holding of Bolling v. Sharpe with regard to the Fifth Amendment\nand the Fourteenth Amendment\xe2\x80\x99s Equal Protection Clause. This is sometimes called \xe2\x80\x9creverse\nincorporation.\xe2\x80\x9d\n2. Footnote 11 in Brown I stating that the lower court\xe2\x80\x99s finding was \xe2\x80\x9camply supported by modern\nauthority\xe2\x80\x9d provided:\nK.B. Clark, Effect of Prejudice and Discrimination on Personality Development (Mid-century\nWhite House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in\nthe Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation\nA Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological\nEffects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res.\n229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed.,\n1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal,\nAn American Dilemma (1944).\nThe first reference is to the famous \xe2\x80\x9cdoll studies\xe2\x80\x9d by Kenneth and Mamie Clark, as explained here:\nIn the 1940s, psychologists Kenneth and Mamie Clark designed and conducted a series of\nexperiments known colloquially as \xe2\x80\x9cthe doll tests\xe2\x80\x9d to study the psychological effects of\nsegregation on African-American children. {The methodology began as part of Mamie Clark\xe2\x80\x99s\nmasters\xe2\x80\x99 thesis in psychology.}\nIn the famous \xe2\x80\x9cdoll studies,\xe2\x80\x9d Drs. Clark used four dolls, identical except for color, to test\nchildren\xe2\x80\x99s racial perceptions. Their subjects, children between the ages of three to seven, were\nasked to identify both the race of the dolls and which color doll they prefer. A majority of\nthe children preferred the white doll and assigned positive characteristics to it. The Clarks\nconcluded that \xe2\x80\x9cprejudice, discrimination, and segregation\xe2\x80\x9d created a feeling of inferiority\namong African-American children and damaged their self-esteem.\nThe doll test was only one part of Dr. Clark\xe2\x80\x99s testimony in Brown \xe2\x80\x93 it did not constitute the\nlargest portion of his analysis and expert report. His conclusions during his testimony were\nbased on a comprehensive analysis of the most cutting-edge psychology scholarship of the\nperiod.\nNAACP-LDF, Doctors Kenneth and Mamie Clark and \xe2\x80\x9cThe Doll Test,\xe2\x80\x9d http://www.naacpldf.org/brownat-60-the-doll-test. The doll study become a \xe2\x80\x9csymbol and lightning rod\xe2\x80\x9d for Brown; one of the dolls\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 123\n\n\x0cis now displayed in the National Historic Site for Brown v. Board of Education, https://www.nps.gov/\nbrvb/learn/historyculture/clarkdoll.htm Kenneth Clark was a Professor at CUNY (City College) for a\nnumber of years and was the first African-American President of the American Psychological Ass\xe2\x80\x99n.\n\nCooper v. Aaron\n358 U.S. 1 (1958)\nOPINION OF THE COURT BY THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER, MR. JUSTICE\nDOUGLAS, MR. JUSTICE BURTON, MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, AND MR. JUSTICE\nWHITTAKER.\nAs this case reaches us it raises questions of the highest importance to the maintenance of our federal\nsystem of government. It necessarily involves a claim by the Governor and Legislature of a State that\nthere is no duty on state officials to obey federal court orders resting on this Court\xe2\x80\x99s considered\ninterpretation of the United States Constitution. Specifically it involves actions by the Governor and\nLegislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of\nEducation. That holding was that the Fourteenth Amendment forbids States to use their governmental\npowers to bar children on racial grounds from attending schools where there is state participation\nthrough any arrangement, management, funds or property. We are urged to uphold a suspension of\nthe Little Rock School Board\xe2\x80\x99s plan to do away with segregated public schools in Little Rock until state\nlaws and efforts to upset and nullify our holding in Brown v. Board of Education have been further\nchallenged and tested in the courts. We reject these contentions. * * * *\n{The school district was preparing to a plan for desegregation even as Arkansas state officials} were\nactively pursuing a program designed to perpetuate in Arkansas the system of racial segregation\nwhich this Court had held violated the Fourteenth Amendment. First came, in November 1956, an\namendment to the State Constitution flatly commanding the Arkansas General Assembly to oppose \xe2\x80\x98in\nevery Constitutional manner the Unconstitutional desegregation decisions of May 17, 1954 and May 31,\n1955 of the United States Supreme Court,\xe2\x80\x99 Ark. Const. Amend. 44, and, through the initiative, a pupil\nassignment law, Ark. Stats. \xc2\xa7\xc2\xa7 80-1519 to 80-1524. Pursuant to this state constitutional command, a law\nrelieving school children from compulsory attendance at racially mixed schools, Ark. Stats. \xc2\xa7 80-1525,\nand a law establishing a State Sovereignty Commission, Ark. Stats. \xc2\xa7\xc2\xa7 6-801 to 6-824, were enacted by\nthe General Assembly in February 1957. * * * *\nWe come now to the aspect of the proceedings presently before us. On February 20, 1958, the School\nBoard and the Superintendent of Schools filed a petition in the District Court seeking a postponement\nof their program for desegregation. Their position, in essence, was that, because of extreme public\nhostility, which they stated had been engendered largely by the official attitudes and actions of the\nGovernor and the Legislature, the maintenance of a sound educational program at Central High\nSchool, with the Negro students in attendance, would be impossible. The Board therefore proposed\nthat the Negro students already admitted to the school be withdrawn and sent to segregated schools,\n\n124 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cand that all further steps to carry out the Board\xe2\x80\x99s desegregation program be postponed for a period\nlater suggested by the Board to be two and one-half years.\nAfter a hearing, the District Court granted the relief requested by the Board. * * * * {While the\nproceedings are complex; the Eighth Circuit reversed, but stayed its mandate. The United States\nSupreme Court granted the petition for certiorari.} \xe2\x80\x9cRecognizing the vital importance of a decision\nof the issues in time to permit arrangements to be made for the 1958-1959 school year, we convened\nin Special Term on August 28, 1958, and heard oral argument on the respondents\xe2\x80\x99 motions, and\nalso argument of the Solicitor General who, by invitation, appeared for the United States as amicus\ncuriae, and asserted that the Court of Appeals\xe2\x80\x99 judgment was clearly correct. {The Court unanimously\naffirmed the Eighth Circuit on September 12, 1958, issued a brief per curiam opinion, and this opinion\nfollowed on September 29}.\n{The Court held that the School Board and Superintendent were state actions bound by the\nFourteenth Amendment to comply with Brown}.\nWhat has been said, in the light of the facts developed, is enough to dispose of the case. However,\nwe should answer the premise of the actions of the Governor and Legislature that they are not\nbound by our holding in the Brown case. It is necessary only to recall some basic constitutional\npropositions which are settled doctrine. Article VI of the Constitution makes the Constitution the\n\xe2\x80\x9csupreme Law of the Land.\xe2\x80\x9d In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring\nto the Constitution as \xe2\x80\x9cthe fundamental and paramount law of the nation,\xe2\x80\x9d declared in the notable\ncase of Marbury v. Madison that \xe2\x80\x9cIt is emphatically the province and duty of the judicial department\nto say what the law is.\xe2\x80\x9d This decision declared the basic principle that the federal judiciary is supreme\nin the exposition of the law of the Constitution, and that principle has ever since been respected by\nthis Court and the Country as a permanent and indispensable feature of our constitutional system. It\nfollows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown\ncase is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the\nStates \xe2\x80\x9cany Thing in the Constitution or Laws of any State to the Contrary notwithstanding.\xe2\x80\x9d Every\nstate legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art.\nVI, cl. 3 \xe2\x80\x9cto support this Constitution.\xe2\x80\x9d * * * * No state legislator or executive or judicial officer can war\nagainst the Constitution without violating his undertaking to support it. * * * *\nIt is, of course, quite true that the responsibility for public education is primarily the concern of\nthe States, but it is equally true that such responsibilities, like all other state activity, must be\nexercised consistently with federal constitutional requirements as they apply to state action. The\nConstitution created a government dedicated to equal justice under law. The Fourteenth Amendment\nembodied and emphasized that ideal. State support of segregated schools through any arrangement,\nmanagement, funds, or property cannot be squared with the Amendment\xe2\x80\x99s command that no State\nshall deny to any person within its jurisdiction the equal protection of the laws. The right of a\nstudent not to be segregated on racial grounds in schools so maintained is indeed so fundamental\nand pervasive that it is embraced in the concept of due process of law. Bolling v. Sharpe. The basic\ndecision in Brown was unanimously reached by this Court only after the case had been briefed and\ntwice argued and the issues had been given the most serious consideration. Since the first Brown\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 125\n\n\x0copinion, three new Justices have come to the Court. They are at one with the Justices still on the Court\nwho participated in that basic decision as to its correctness, and that decision is now unanimously\nreaffirmed. The principles announced in that decision and the obedience of the States to them,\naccording to the command of the Constitution, are indispensable for the protection of the freedoms\nguaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law\nis thus made a living truth.\n{CONCURRING OPINION OF JUSTICE FRANKFURTER, WHO ALSO JOINED THE MAIN OPINION, OMITTED}.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=34#h5p-94\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=34#h5p-95\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=34#h5p-96\n\nNote: Limiting Brown\nIn Brown II, the Court famously stated that the lower courts would oversee desegregation working\nwith \xe2\x80\x9call deliberate speed.\xe2\x80\x9d Plaintiffs represented by various civil rights law firms (including the NAACP\nInc. Fund) as well as the Department of Justice brought desegregation lawsuits against school districts\nin federal court; often there was a \xe2\x80\x9cspecial master\xe2\x80\x9d appointed by the federal court as an expert to\ndevelop a plan and there were many \xe2\x80\x9cconsent decrees.\xe2\x80\x9d Some school districts were undeniably hostile.\nFor example, Prince Edward County, Virginia closed its public schools rather than comply with Brown:\nthe Court found this violated the Equal Protection Clause in Griffin v. County School Board, 377 U.S.\n218 (1964). Some school districts were cooperative; many were a mix and fluctuated.\nIn the litigation, decisions, and public discourse, rifts were not only between pro-Brown and\n126 | Liberty, Equality, and Due Process: Third Edition\n\n\x0canti-Brown but became more nuanced. One such divide concerned the ultimate goal: was it racial\ndesegregation or was it racial integration? Another controversy centered on the role of the federal\ncourts and their constitutional power to order remedies. Additionally, the relevance of time changed\nfrom accomplishing desegregation in public schools with \xe2\x80\x9call deliberate speed\xe2\x80\x9d to tracing\nresponsibility for present segregated conditions (\xe2\x80\x9cde facto\xe2\x80\x9d segregation) back to mandatory legal (\xe2\x80\x9cde\njure\xe2\x80\x9d) segregation.\nA number of cases reached the United States Supreme Court, but the following three are pivotal.\nIn Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), involving schools in the city\nof Charlotte, North Carolina, and surrounding Mecklenburg County in a district of 550 square miles,\na unanimous Supreme Court upheld court-ordered busing of students and transfer of teachers to\nachieve desegregation. Writing for the Court, Chief Justice Burger stated:\nAbsent a constitutional violation, there would be no basis for judicially ordering assignment\nof students on a racial basis. All things being equal, with no history of discrimination, it might\nwell be desirable to assign pupils to schools nearest their homes. But all things are not equal in\na system that has been deliberately constructed and maintained to enforce racial segregation.\nNevertheless:\n[T]he existence of some small number of one-race, or virtually one-race, schools within a\ndistrict is not, in and of itself, the mark of a system that still practices segregation by law.\nThe district judge or school authorities should make every effort to achieve the greatest\npossible degree of actual desegregation, and will thus necessarily be concerned with the\nelimination of one-race schools. No per se rule can adequately embrace all the difficulties of\nreconciling the competing interests involved; but, in a system with a history of segregation,\nthe need for remedial criteria of sufficient specificity to assure a school authority\xe2\x80\x99s compliance\nwith its constitutional duty warrants a presumption against schools that are substantially\ndisproportionate in their racial composition. Where the school authority\xe2\x80\x99s proposed plan for\nconversion from a dual to a unitary system contemplates the continued existence of some\nschools that are all or predominately of one race, they have the burden of showing that\nsuch school assignments are genuinely nondiscriminatory. The court should scrutinize such\nschools, and the burden upon the school authorities will be to satisfy the court that their racial\ncomposition is not the result of present or past discriminatory action on their part.\nIn Milliken v. Bradley, 418 U.S. 717 (1974), involving Detroit and surrounding areas in Michigan, the\ndistrict judge had ordered \xe2\x80\x9cbusing\xe2\x80\x9d between the school district of Detroit, which had been subject of\na 1970 state law resisting racial desegregation, and 85 other \xe2\x80\x9coutlying\xe2\x80\x9d school districts in three other\ncounties which had not been subject to any local or state laws regarding racial segregation in schools.\nThe Court, in a majority five Justice opinion by Chief Justice Burger, reversed the remedial busing\norder across districts:\nThe controlling principle consistently expounded in our holdings is that the scope of the\nremedy is determined by the nature and extent of the constitutional violation. Swann. Before\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 127\n\n\x0cthe boundaries of separate and autonomous school districts may be set aside by consolidating\nthe separate units for remedial purposes or by imposing a cross-district remedy, it must first\nbe shown that there has been a constitutional violation within one district that produces a\nsignificant segregative effect in another district. Specifically, it must be shown that racially\ndiscriminatory acts of the state or local school districts, or of a single school district have\nbeen a substantial cause of inter-district segregation. Thus, an inter-district remedy might\nbe in order where the racially discriminatory acts of one or more school districts caused\nracial segregation in an adjacent district, or where district lines have been deliberately drawn\non the basis of race. In such circumstances, an inter-district remedy would be appropriate\nto eliminate the inter-district segregation directly caused by the constitutional violation.\nConversely, without an inter-district violation and inter-district effect, there is no\nconstitutional wrong calling for an inter-district remedy.\nIn other words, there must be a direct nexus of between the constitutional \xe2\x80\x9cwrong\xe2\x80\x9d and the remedy.\nIn Milliken, the problematical connection is primarily one of \xe2\x80\x9cplace.\xe2\x80\x9d When the case returned to the\nCourt, Milliken II (1977), the Court upheld the district judge\xe2\x80\x99s subsequent remedies that focused on\nreform only of the Detroit schools.\nIn Freeman v. Pitts, 498 U.S. 1081 (1992), the Court considered developments arising from a 1969\nconsent decree seeking to remedy racial segregation in the DeKalb County School System, in\nsuburban Atlanta, Georgia. The question before the Court was whether the DeKalb County system had\nachieved \xe2\x80\x9cunitary\xe2\x80\x9d status and could thus be released from court supervision, despite the fact that the\nschools were not racially integrated.\nWriting for the Court majority, Justice Kennedy stated:\nThat there was racial imbalance in student attendance zones was not tantamount to a showing\nthat the school district was in noncompliance with the decree or with its duties under the law.\nRacial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance\nhas been caused by a constitutional violation. Once the racial imbalance due to the de jure\nviolation has been remedied, the school district is under no duty to remedy imbalance that\nis caused by demographic factors. Swann. * * * * If the unlawful de jure policy of a school\nsystem has been the cause of the racial imbalance in student attendance, that condition must\nbe remedied. The school district bears the burden of showing that any current imbalance is\nnot traceable, in a proximate way, to the prior violation. * * * *\nWhere resegregation is a product not of state action, but of private choices, it does not have\nconstitutional implications. It is beyond the authority and beyond the practical ability of the\nfederal courts to try to counteract these kinds of continuous and massive demographic shifts.\nTo attempt such results would require ongoing and never-ending supervision by the courts\nof school districts simply because they were once de jure segregated. Residential housing\nchoices, and their attendant effects on the racial composition of schools, present an everchanging pattern, one difficult to address through judicial remedies. * * * *\nAs the de jure violation becomes more remote in time and these demographic changes\n128 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cintervene, it becomes less likely that a current racial imbalance in a school district is a vestige\nof the prior de jure system. The causal link between current conditions and the prior violation\nis even more attenuated if the school district has demonstrated its good faith. In light of its\nfinding that the demographic changes in DeKalb County are unrelated to the prior violation,\nthe District Court was correct to entertain the suggestion that DCSS had no duty to achieve\nsystem wide racial balance in the student population.\nSome of these principles and cases will resurface in Affirmative Action doctrine later in this chapter.\n\nIII. Evaluating Racial Classifications\nNote: Strict Scrutiny\nRacial classifications receive strict scrutiny, meaning the government interest must be compelling and\nthe means chosen must be narrowly tailored to achieve that interest.\nIn contrast to strict scrutiny, rational basis scrutiny requires only that the government interest be\nlegitimate and the means chosen to serve that interest be rationally related to it.\nThe United States Supreme Court does not always use this precise terminology, but it has clearly\narticulated it in a more than a few cases and it is evinced in many others. This is the terminology used\nby almost all other courts and lawyers.\n\nLoving v. Virginia\n388 U.S. 1 (1967)\nMR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE {UNANIMOUS} COURT.\nThis case presents a constitutional question never addressed by this Court: whether a statutory\nscheme adopted by the State of Virginia to prevent marriages between persons solely on the basis\nof racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth\nAmendment. For reasons which seem to us to reflect the central meaning of those constitutional\ncommands, we conclude that these statutes cannot stand consistently with the Fourteenth\nAmendment.\nIn June, 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white\nman, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the\nLovings returned to Virginia and established their marital abode in Caroline County. At the October\nTerm, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 129\n\n\x0cLovings with violating Virginia\xe2\x80\x99s ban on interracial marriages. On January 6, 199, the Lovings pleaded\nguilty to the charge, and were sentenced to one year in jail; however, the trial judge suspended the\nsentence for a period of 25 years on the condition that the Lovings leave the State and not return to\nVirginia together for 25 years. He stated in an opinion that:\nAlmighty God created the races white, black, yellow, malay and red, and he placed them on\nseparate continents. And, but for the interference with his arrangement, there would be no\ncause for such marriage. The fact that he separated the races shows that he did not intend for\nthe races to mix.\nAfter their convictions, the Lovings took up residence in the District of Columbia. On November 6,\n1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on\nthe ground that the statutes which they had violated were repugnant to the Fourteenth Amendment\n* * * * we noted probable jurisdiction* * * *.\nThe two statutes under which appellants were convicted and sentenced are part of a comprehensive\nstatutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were\nconvicted of violating \xc2\xa7 258 of the Virginia Code:\nLeaving State to evade law.\xe2\x80\x94If any white person and colored person shall go out of this State,\nfor the purpose of being married, and with the intention of returning, and be married out of it,\nand afterwards return to and reside in it, cohabiting as man and wife, they shall be punished\nas provided in \xc2\xa7 20-59, and the marriage shall be governed by the same law as if it had been\nsolemnized in this State. The fact of their cohabitation here as man and wife shall be evidence\nof their marriage.\nSection 259, which defines the penalty for miscegenation, provides:\nPunishment for marriage.\xe2\x80\x94If any white person intermarry with a colored person, or any\ncolored person intermarry with a white person, he shall be guilty of a felony and shall be\npunished by confinement in the penitentiary for not less than one nor more than five years.\nOther central provisions in the Virginia statutory scheme are \xc2\xa7 20-57, which automatically voids\nall marriages between \xe2\x80\x9ca white person and a colored person\xe2\x80\x9d without any judicial proceeding, and\n\xc2\xa7\xc2\xa7 20-54 and 1-14 which, respectively, define \xe2\x80\x9cwhite persons\xe2\x80\x9d and \xe2\x80\x9ccolored persons and Indians\xe2\x80\x9d for\npurposes of the statutory prohibitions. {footnote 4: see Notes} The Lovings have never disputed in the\ncourse of this litigation that Mrs. Loving is a \xe2\x80\x9ccolored person\xe2\x80\x9d or that Mr. Loving is a \xe2\x80\x9cwhite person\xe2\x80\x9d\nwithin the meanings given those terms by the Virginia statutes.\nVirginia is now one of 16 States which prohibit and punish marriages on the basis of racial\nclassifications. Penalties for miscegenation arose as an incident to slavery, and have been common in\nVirginia since the colonial period. The present statutory scheme dates from the adoption of the Racial\nIntegrity Act of 1924, passed during the period of extreme nativism which followed the end of the First\nWorld War. The central features of this Act, and current Virginia law, are the absolute prohibition of\na \xe2\x80\x9cwhite person\xe2\x80\x9d marrying other than another \xe2\x80\x9cwhite person,\xe2\x80\x9d a prohibition against issuing marriage\nlicenses until the issuing official is satisfied that the applicants\xe2\x80\x99 statements as to their race are correct,\n130 | Liberty, Equality, and Due Process: Third Edition\n\n\x0ccertificates of \xe2\x80\x9cracial composition\xe2\x80\x9d to be kept by both local and state registrars, and the carrying\nforward of earlier prohibitions against racial intermarriage.\n\nI\nIn upholding the constitutionality of these provisions in the decision below, the Supreme Court of\nAppeals of Virginia referred to its 1965 decision in Naim v. Naim, as stating the reasons supporting the\nvalidity of these laws. In Naim, the state court concluded that the State\xe2\x80\x99s legitimate purposes were \xe2\x80\x9cto\npreserve the racial integrity of its citizens,\xe2\x80\x9d and to prevent \xe2\x80\x9cthe corruption of blood,\xe2\x80\x9d \xe2\x80\x9ca mongrel breed\nof citizens,\xe2\x80\x9d and \xe2\x80\x9cthe obliteration of racial pride,\xe2\x80\x9d obviously an endorsement of the doctrine of White\nSupremacy. The court also reasoned that marriage has traditionally been subject to state regulation\nwithout federal intervention, and, consequently, the regulation of marriage should be left to exclusive\nstate control by the Tenth Amendment.\nWhile the state court is no doubt correct in asserting that marriage is a social relation subject to\nthe State\xe2\x80\x99s police power, Maynard v. Hill (1888), the State does not contend in its argument before\nthis Court that its powers to regulate marriage are unlimited notwithstanding the commands of\nthe Fourteenth Amendment. Nor could it do so in light of Meyer v. Nebraska (1923), and Skinner\nv. Oklahoma (1942). Instead, the State argues that the meaning of the Equal Protection Clause, as\nilluminated by the statements of the Framers, is only that state penal laws containing an interracial\nelement as part of the definition of the offense must apply equally to whites and Negroes in the\nsense that members of each race are punished to the same degree. Thus, the State contends that,\nbecause its miscegenation statutes punish equally both the white and the Negro participants in an\ninterracial marriage, these statutes, despite their reliance on racial classifications, do not constitute\nan invidious discrimination based upon race. The second argument advanced by the State assumes\nthe validity of its equal application theory. The argument is that, if the Equal Protection Clause does\nnot outlaw miscegenation statutes because of their reliance on racial classifications, the question\nof constitutionality would thus become whether there was any rational basis for a State to treat\ninterracial marriages differently from other marriages. On this question, the State argues, the\nscientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom\nof the state legislature in adopting its policy of discouraging interracial marriages.\nBecause we reject the notion that the mere \xe2\x80\x9cequal application\xe2\x80\x9d of a statute containing racial\nclassifications is enough to remove the classifications from the Fourteenth Amendment\xe2\x80\x99s proscription\nof all invidious racial discriminations, we do not accept the State\xe2\x80\x99s contention that these statutes\nshould be upheld if there is any possible basis for concluding that they serve a rational purpose. The\nmere fact of equal application does not mean that our analysis of these statutes should follow the\napproach we have taken in cases involving no racial discrimination where the Equal Protection Clause\nhas been arrayed against a statute discriminating between the kinds of advertising which may be\ndisplayed on trucks in New York City, Railway Express Agency, Inc. v. New York (1949) * * * * {other\ncases omitted}. In these cases, involving distinctions not drawn according to race, the Court has\nmerely asked whether there is any rational foundation for the discriminations, and has deferred to the\nwisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 131\n\n\x0cclassifications, and the fact of equal application does not immunize the statute from the very heavy\nburden of justification which the Fourteenth Amendment has traditionally required of state statutes\ndrawn according to race.\nThe State argues that statements in the Thirty-ninth Congress about the time of the passage of\nthe Fourteenth Amendment indicate that the Framers did not intend the Amendment to make\nunconstitutional state miscegenation laws. Many of the statements alluded to by the State concern\nthe debates over the Freedmen\xe2\x80\x99s Bureau Bill, which President {Andrew} Johnson vetoed, and the Civil\nRights Act of 1866, enacted over his veto. While these statements have some relevance to the intention\nof Congress in submitting the Fourteenth Amendment, it must be understood that they pertained\nto the passage of specific statutes, and not to the broader, organic purpose of a constitutional\namendment. As for the various statements directly concerning the Fourteenth Amendment, we have\nsaid in connection with a related problem that, although these historical sources \xe2\x80\x9ccast some light\xe2\x80\x9d\nthey are not sufficient to resolve the problem;\n[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments\nundoubtedly intended them to remove all legal distinctions among \xe2\x80\x9call persons born or\nnaturalized in the United States.\xe2\x80\x9d Their opponents, just as certainly, were antagonistic to both\nthe letter and the spirit of the Amendments, and wished them to have the most limited effect.\nBrown v. Board of Education (1954). See also Strauder v. West Virginia (1880). We have rejected the\nproposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified\nthe Fourteenth Amendment supported the theory advanced by the State, that the requirement of\nequal protection of the laws is satisfied by penal laws defining offenses based on racial classifications\nso long as white and Negro participants in the offense were similarly punished.\nThe State finds support for its \xe2\x80\x9cequal application\xe2\x80\x9d theory in the decision of the Court in Pace v.\nAlabama (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding\nadultery or fornication between a white person and a Negro which imposed a greater penalty than\nthat of a statute proscribing similar conduct by members of the same race. The Court reasoned\nthat the statute could not be said to discriminate against Negroes because the punishment for each\nparticipant in the offense was the same. However, as recently as the 1964 Term, in rejecting the\nreasoning of that case, we stated \xe2\x80\x9cPace represents a limited view of the Equal Protection Clause\nwhich has not withstood analysis in the subsequent decisions of this Court.\xe2\x80\x9d McLaughlin v. Florida.\nAs we there demonstrated, the Equal Protection Clause requires the consideration of whether the\nclassifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear\nand central purpose of the Fourteenth Amendment was to eliminate all official state sources of\ninvidious racial discrimination in the States. Slaughter-House Cases (1873); Strauder v. West Virginia\n(1880); Ex parte Virginia (1880); Shelley v. Kraemer (1948); Burton v. Wilmington Parking Authority\n(1961).\nThere can be no question but that Virginia\xe2\x80\x99s miscegenation statutes rest solely upon distinctions\ndrawn according to race. The statutes proscribe generally accepted conduct if engaged in by members\nof different races. Over the years, this Court has consistently repudiated \xe2\x80\x9c[d]istinctions between\ncitizens solely because of their ancestry\xe2\x80\x9d as being \xe2\x80\x9codious to a free people whose institutions are\n132 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cfounded upon the doctrine of equality.\xe2\x80\x9d Hirabayashi v. United States (1943). At the very least, the\nEqual Protection Clause demands that racial classifications, especially suspect in criminal statutes,\nbe subjected to the \xe2\x80\x9cmost rigid scrutiny,\xe2\x80\x9d Korematsu v. United States (1944), and, if they are ever\nto be upheld, they must be shown to be necessary to the accomplishment of some permissible\nstate objective, independent of the racial discrimination which it was the object of the Fourteenth\nAmendment to eliminate. Indeed, two members of this Court have already stated that they cannot\nconceive of a valid legislative purpose . . . which makes the color of a person\xe2\x80\x99s skin the test of whether\nhis conduct is a criminal offense. McLaughlin v. Florida, (Stewart, J., joined by Douglas, J., concurring).\nThere is patently no legitimate overriding purpose independent of invidious racial discrimination\nwhich justifies this classification. The fact that Virginia prohibits only interracial marriages involving\nwhite persons demonstrates that the racial classifications must stand on their own justification, as\nmeasures designed to maintain White Supremacy. We have consistently denied the constitutionality\nof measures which restrict the rights of citizens on account of race. There can be no doubt that\nrestricting the freedom to marry solely because of racial classifications violates the central meaning\nof the Equal Protection Clause.\n\nII\nThese statutes also deprive the Lovings of liberty without due process of law in violation of the Due\nProcess Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one\nof the vital personal rights essential to the orderly pursuit of happiness by free men.\nMarriage is one of the \xe2\x80\x9cbasic civil rights of man,\xe2\x80\x9d fundamental to our very existence and survival.\nSkinner v. Oklahoma (1942). See also Maynard v. Hill (1888). To deny this fundamental freedom on\nso unsupportable a basis as the racial classifications embodied in these statutes, classifications so\ndirectly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely\nto deprive all the State\xe2\x80\x99s citizens of liberty without due process of law. The Fourteenth Amendment\nrequires that the freedom of choice to marry not be restricted by invidious racial discriminations.\nUnder our Constitution, the freedom to marry, or not marry, a person of another race resides with the\nindividual, and cannot be infringed by the State.\nThese convictions must be reversed.\nIt is so ordered.\nMR. JUSTICE STEWART, CONCURRING.\nI have previously expressed the belief that \xe2\x80\x9cit is simply not possible for a state law to be valid under\nour Constitution which makes the criminality of an act depend upon the race of the actor.\xe2\x80\x9d McLaughlin\nv. Florida (concurring opinion). Because I adhere to that belief, I concur in the judgment of the Court.\n\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 133\n\n\x0cCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=34#h5p-57\n\nNotes\n1. Be prepared to discuss all of the arguments of the parties as well as the Court\xe2\x80\x99s conclusion using the\nstrict scrutiny standard in Loving.\n2. Be prepared to discuss the relevance of Footnote 4 of the Court\xe2\x80\x99s opinion in Loving which reads:\nSection 20-54 of the Virginia Code provides:\nIntermarriage prohibited; meaning of term \xe2\x80\x9cwhite persons.\xe2\x80\x9d\xe2\x80\x94It shall hereafter be unlawful for\nany white person in this State to marry any save a white person, or a person with no other\nadmixture of blood than white and American Indian. For the purpose of this chapter, the term\n\xe2\x80\x9cwhite person\xe2\x80\x9d shall apply only to such person as has no trace whatever of any blood other\nthan Caucasian; but persons who have one-sixteenth or less of the blood of the American\nIndian and have no other non-Caucasic blood shall be deemed to be white persons. All laws\nheretofore passed and now in effect regarding the intermarriage of white and colored persons\nshall apply to marriages prohibited by this chapter.\nVa.Code Ann. \xc2\xa7 20-54 (1960 Repl. Vol.).\nThe exception for persons with less than one-sixteenth \xe2\x80\x9cof the blood of the American Indian\xe2\x80\x9d\nis apparently accounted for, in the words of a tract issued by the Registrar of the State Bureau\nof Vital Statistics, by \xe2\x80\x9cthe desire of all to recognize as an integral and honored part of the white\nrace the descendants of John Rolfe and Pocathontas. . . .\xe2\x80\x9d Plecker, The New Family and Race\nImprovement, 17 Va.Health Bull., Extra No. 12, at 25-26 (New Family Series No. 5, 1925)* * * *.\nSection 1-14 of the Virginia Code provides:\nColored persons and Indians defined.\xe2\x80\x94Every person in whom there is ascertainable any Negro\nblood shall be deemed and taken to be a colored person, and every person not a colored\nperson having one fourth or more of American Indian blood shall be deemed an American\nIndian; except that members of Indian tribes existing in this Commonwealth having one fourth\nor more of Indian blood and less than one sixteenth of Negro blood shall be deemed tribal\nIndians.\nVa.Code Ann. \xc2\xa7 1-14 (1960 Repl. Vol.).\n\n134 | Liberty, Equality, and Due Process: Third Edition\n\n\x0c3. Section II of the Court\xe2\x80\x99s opinion, which is brief and reproduced in full in the text, will resurface in\nDue Process Clause doctrine in later chapters.\n\nIV. Neutral Classifications?\nYick Wo v. Hopkins\n118 U.S. 356 (1886)\n{The 1880 San Francisco Ordinance under which Yick Wo was convicted and imprisoned provided\nIt shall be unlawful, from and after the passage of this order, for any person or persons to\nestablish, maintain, or carry on a laundry within the corporate limits of the city and county\nof San Francisco without having first obtained the consent of the board of supervisors, except\nthe same be located in a building constructed either of brick or stone.\nAccording to the allegations, there were about 320 laundries in the San Francisco, of which about 240\nwere owned and conducted by subjects of China, and of the whole number, viz., 320, about 310 were\nconstructed of wood, the same material that constitutes nine-tenths of the houses in San Francisco.\nThe case is consolidated with another similar case.}\nMR. JUSTICE MATTHEWS DELIVERED THE OPINION OF THE {UNANIMOUS} COURT.\nIn the case of the petitioner, brought here by writ of error to the Supreme Court of California, our\njurisdiction is limited to the question whether the plaintiff in error has been denied a right in violation\nof the Constitution, laws, or treaties of the United States. The question whether his imprisonment is\nillegal under the constitution and laws of the State is not open to us. * * * *\nThat, however, does not preclude this court from putting upon the ordinances of the supervisors\nof the county and city of San Francisco an independent construction, for the determination of the\nquestion whether the proceedings under these ordinances and in enforcement of them are in conflict\nwith the Constitution and laws of the United States necessarily involves the meaning of the ordinance,\nwhich, for that purpose, we are required to ascertain and adjudge.\nWe are consequently constrained, at the outset, to differ from the Supreme Court of California upon\nthe real meaning of the ordinances in question. That court considered these ordinances as vesting in\nthe board of supervisors a not unusual discretion in granting or withholding their assent to the use\nof wooden buildings as laundries, to be exercised in reference to the circumstances of each case with\na view to the protection of the public against the dangers of fire. We are not able to concur in that\ninterpretation of the power conferred upon the supervisors. * * * *\nThis erroneous view of the ordinances in question led the Supreme Court of California into the further\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 135\n\n\x0cerror of holding that they were justified by the decisions of this court in the cases of Barbier v.\nConnolly (1885) and Soon Hing v. Crowley (1885). In both of these cases, the ordinance involved was\nsimply a prohibition to carry on the washing and ironing of clothes in public laundries and washhouses\nwithin certain prescribed limits of the city and county of San Francisco from ten o\xe2\x80\x99clock at night\nuntil six o\xe2\x80\x99clock in the morning of the following day. This provision was held to be purely a police\nregulation within the competency of any municipality possessed of the ordinary powers belonging to\nsuch bodies, a necessary measure of precaution in a city composed largely of wooden buildings like\nSan Francisco, in the application of which there was no invidious discrimination against anyone within\nthe prescribed limits, all persons engaged in the same business being treated alike, and subject to the\nsame restrictions and entitled to the same privileges under similar conditions.\nFor these reasons, that ordinance was adjudged not to be within the prohibitions of the Fourteenth\nAmendment to the Constitution of the United States * * * *\nThe ordinance drawn in question in the present case is of a very different character. It does not\nprescribe a rule and conditions for the regulation of the use of property for laundry purposes to\nwhich all similarly situated may conform. It allows without restriction the use for such purposes of\nbuildings of brick or stone, but, as to wooden buildings, constituting nearly all those in previous use,\nit divides the owners or occupiers into two classes, not having respect to their personal character\nand qualifications for the business, nor the situation and nature and adaptation of the buildings\nthemselves, but merely by an arbitrary line, on one side of which are those who are permitted to\npursue their industry by the mere will and consent of the supervisors, and on the other those from\nwhom that consent is withheld at their mere will and pleasure. And both classes are alike only in this,\nthat they are tenants at will, under the supervisors, of their means of living. The ordinance, therefore,\nalso differs from the not unusual case where discretion is lodged by law in public officers or bodies\nto grant or withhold licenses to keep taverns, or places for the sale of spirituous liquors, and the like,\nwhen one of the conditions is that the applicant shall be a fit person for the exercise of the privilege,\nbecause, in such cases, the fact of fitness is submitted to the judgment of the officer, and calls for the\nexercise of a discretion of a judicial nature.\nThe rights of the petitioners, as affected by the proceedings of which they complain, are not less\nbecause they are aliens and subjects of the Emperor of China. {Treaty discussion omitted}. The\nFourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: \xe2\x80\x9cNor\nshall any State deprive any person of life, liberty, or property without due process of law; nor deny to\nany person within its jurisdiction the equal protection of the laws.\xe2\x80\x9d\nThese provisions are universal in their application to all persons within the territorial jurisdiction,\nwithout regard to any differences of race, of color, or of nationality, and the equal protection of the\nlaws is a pledge of the protection of equal laws. * * * *\nThe questions we have to consider and decide in these cases, therefore, are to be treated as invoking\nthe rights of every citizen of the United States equally with those of the strangers and aliens who now\ninvoke the jurisdiction of the court.\nIt is contended on the part of the petitioners that the ordinances for violations of which they are\n136 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cseverally sentenced to imprisonment are void on their face as being within the prohibitions of the\nFourteenth Amendment, and, in the alternative, if not so, that they are void by reason of their\nadministration, operating unequally so as to punish in the present petitioners what is permitted to\nothers as lawful, without any distinction of circumstances\xe2\x80\x94an unjust and illegal discrimination, it is\nclaimed, which, though not made expressly by the ordinances, is made possible by them.\nWhen we consider the nature and the theory of our institutions of government, the principles upon\nwhich they are supposed to rest, and review the history of their development, we are constrained to\nconclude that they do not mean to leave room for the play and action of purely personal and arbitrary\npower. Sovereignty itself is, of course, not subject to law, for it is the author and source of law;\nbut, in our system, while sovereign powers are delegated to the agencies of government, sovereignty\nitself remains with the people, by whom and for whom all government exists and acts. And the law\nis the definition and limitation of power. It is, indeed, quite true that there must always be lodged\nsomewhere, and in some person or body, the authority of final decision, and in many cases of mere\nadministration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of\nthe public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the\nfundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions,\nare secured by those maxims of constitutional law which are the monuments showing the victorious\nprogress of the race in securing to men the blessings of civilization under the reign of just and equal\nlaws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the\ncommonwealth \xe2\x80\x9cmay be a government of laws, and not of men.\xe2\x80\x9d For the very idea that one man may\nbe compelled to hold his life, or the means of living, or any material right essential to the enjoyment\nof life at the mere will of another seems to be intolerable in any country where freedom prevails, as\nbeing the essence of slavery itself.\nThere are many illustrations that might be given of this truth, which would make manifest that it was\nself-evident in the light of our system of jurisprudence. The case of the political franchise of voting\nis one. Though not regarded strictly as a natural right, but as a privilege merely conceded by society\naccording to its will under certain conditions, nevertheless it is regarded as a fundamental political\nright, because preservative of all rights.\n****\nIn the present cases, we are not obliged to reason from the probable to the actual, and pass upon\nthe validity of the ordinances complained of, as tried merely by the opportunities which their terms\nafford, of unequal and unjust discrimination in their administration. For the cases present the\nordinances in actual operation, and the facts shown establish an administration directed so\nexclusively against a particular class of persons as to warrant and require the conclusion that,\nwhatever may have been the intent of the ordinances as adopted, they are applied by the public\nauthorities charged with their administration, and thus representing the State itself, with a mind so\nunequal and oppressive as to amount to a practical denial by the State of that equal protection of the\nlaws which is secured to the petitioners, as to all other persons, by the broad and benign provisions\nof the Fourteenth Amendment to the Constitution of the United States. Though the law itself be fair\non its face and impartial in appearance, yet, if it is applied and administered by public authority with\nan evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 137\n\n\x0cpersons in similar circumstances, material to their rights, the denial of equal justice is still within the\nprohibition of the Constitution. * * * *\nThe present cases, as shown by the facts disclosed in the record, are within this class. It appears\nthat both petitioners have complied with every requisite deemed by the law or by the public officers\ncharged with its administration necessary for the protection of neighboring property from fire or\nas a precaution against injury to the public health. No reason whatever, except the will of the\nsupervisors, is assigned why they should not be permitted to carry on, in the accustomed manner,\ntheir harmless and useful occupation, on which they depend for a livelihood. And while this consent of\nthe supervisors is withheld from them and from two hundred others who have also petitioned, all of\nwhom happen to be Chinese subjects, eighty others, not Chinese subjects, are permitted to carry on\nthe same business under similar conditions. The fact of this discrimination is admitted. No reason for\nit is shown, and the conclusion cannot be resisted that no reason for it exists except hostility to the\nrace and nationality to which the petitioners belong, and which, in the eye of the law, is not justified.\nThe discrimination is, therefore, illegal, and the public administration which enforces it is a denial of\nthe equal protection of the laws and a violation of the Fourteenth Amendment of the Constitution.\nThe imprisonment of the petitioners is, therefore, illegal, and they must be discharged.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=34#h5p-58\n\nWashington v. Davis\n426 U.S. 229 (1976)\nWHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.J., AND BLACKMUN, POWELL, REHNQUIST, AND\nSTEVENS, JJ., JOINED, AND IN PARTS I AND II OF WHICH STEWART, J., JOINED. STEVENS, J., FILED A CONCURRING OPINION.\nBRENNAN, J., FILED A DISSENTING OPINION, IN WHICH MARSHALL, J., JOINED.\nMR. JUSTICE WHITE DELIVERED THE OPINION OF THE COURT.\nThis case involves the validity of a qualifying test administered to applicants for positions as police\nofficers in the District of Columbia Metropolitan Police Department. The test was sustained by the\n\n138 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cDistrict Court but invalidated by the Court of Appeals. We are in agreement with the District Court\nand hence reverse the judgment of the Court of Appeals.\n\nI\n{The issue involved an assertion} that their applications to become officers in the Department had\nbeen rejected, and that the Department\xe2\x80\x99s recruiting procedures discriminated on the basis of race\nagainst black applicants by a series of practices including, but not limited to, a written personnel test\nwhich excluded a disproportionately high number of Negro applicants. These practices were asserted\nto violate respondents\xe2\x80\x99 rights \xe2\x80\x9cunder the due process clause of the Fifth Amendment to the United\nStates Constitution * * * *. Defendants answered, and discovery and various other proceedings\nfollowed. Respondents then filed a motion for partial summary judgment with respect to the\nrecruiting phase of the case, seeking a declaration that the test administered to those applying to\nbecome police officers is \xe2\x80\x9cunlawfully discriminatory and thereby in violation of the due process clause\nof the Fifth Amendment . . . .\xe2\x80\x9d No issue under any statute or regulation was raised by the motion.\nThe District of Columbia defendants, petitioners here, and the federal parties also filed motions for\nsummary judgment with respect to the recruiting aspects of the case, asserting that respondents\nwere entitled to relief on neither constitutional nor statutory grounds. The District Court granted\npetitioners\xe2\x80\x99 and denied respondents\xe2\x80\x99 motions.\nAccording to the findings and conclusions of the District Court, to be accepted by the Department\nand to enter an intensive 17-week training program, the police recruit was required to satisfy certain\nphysical and character standards, to be a high school graduate or its equivalent, and to receive a grade\nof at least 40 out of 80 on \xe2\x80\x9cTest 21,\xe2\x80\x9d which is \xe2\x80\x9can examination that is used generally throughout the\nfederal service,\xe2\x80\x9d which \xe2\x80\x9cwas developed by the Civil Service Commission, not the Police Department,\xe2\x80\x9d\nand which was \xe2\x80\x9cdesigned to test verbal ability, vocabulary, reading and comprehension.\xe2\x80\x9d\nThe validity of Test 21 was the sole issue before the court on the motions for summary judgment.\nThe District Court noted that there was no claim of \xe2\x80\x9can intentional discrimination or purposeful\ndiscriminatory acts\xe2\x80\x9d but only a claim that Test 21 bore no relationship to job performance and \xe2\x80\x9chas a\nhighly discriminatory impact in screening out black candidates.\xe2\x80\x9d Respondents\xe2\x80\x99 evidence, the District\nCourt said, warranted three conclusions: \xe2\x80\x9c(a) The number of black police officers, while substantial,\nis not proportionate to the population mix of the city. (b) A higher percentage of blacks fail the Test\nthan whites. (c) The Test has not been validated to establish its reliability for measuring subsequent\njob performance.\xe2\x80\x9d This showing was deemed sufficient to shift the burden of proof to the defendants\nin the action, petitioners here; but the court nevertheless concluded that on the undisputed facts\nrespondents were not entitled to relief. The District Court relied on several factors. Since August 1969,\n44% of new police force recruits had been black; that figure also represented the proportion of blacks\non the total force and was roughly equivalent to 20- to 29-year-old blacks in the 50-mile radius in\nwhich the recruiting efforts of the Police Department had been concentrated. It was undisputed that\nthe Department had systematically and affirmatively sought to enroll black officers many of whom\npassed the test but failed to report for duty. The District Court rejected the assertion that Test 21\nwas culturally slanted to favor whites and was \xe2\x80\x9csatisfied that the undisputable facts prove the test\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 139\n\n\x0cto be reasonably and directly related to the requirements of the police recruit training program and\nthat it is neither so designed nor operates [sic] to discriminate against otherwise qualified blacks.\xe2\x80\x9d\nIt was thus not necessary to show that Test 21 was not only a useful indicator of training school\nperformance but had also been validated in terms of job performance \xe2\x80\x93 \xe2\x80\x9cThe lack of job performance\nvalidation does not defeat the Test, given its direct relationship to recruiting and the valid part it plays\nin this process.\xe2\x80\x9d The District Court ultimately concluded that \xe2\x80\x9c[t]he proof is wholly lacking that a police\nofficer qualifies on the color of his skin rather than ability\xe2\x80\x9d and that the Department \xe2\x80\x9cshould not be\nrequired on this showing to lower standards or to abandon efforts to achieve excellence.\xe2\x80\x9d\nHaving lost on both constitutional and statutory issues in the District Court, respondents brought the\ncase to the Court of Appeals claiming that their summary judgment motion, which rested on purely\nconstitutional grounds, should have been granted. The tendered constitutional issue was whether\nthe use of Test 21 invidiously discriminated against Negroes and hence denied them due process\nof law contrary to the commands of the Fifth Amendment. The Court of Appeals, addressing that\nissue, announced that it would be guided by Griggs v. Duke Power Co. (1971), a case involving the\ninterpretation and application of Title VII of the Civil Rights Act of 1964, and held that the statutory\nstandards elucidated in that case were to govern the due process question tendered in this one. The\ncourt went on to declare that lack of discriminatory intent in designing and administering Test 21 was\nirrelevant; the critical fact was rather that a far greater proportion of blacks \xe2\x80\x93 four times as many \xe2\x80\x93\nfailed the test than did whites. This disproportionate impact, standing alone and without regard\nto whether it indicated a discriminatory purpose, was held sufficient to establish a constitutional\nviolation, absent proof by petitioners that the test was an adequate measure of job performance in\naddition to being an indicator of probable success in the training program, a burden which the court\nruled petitioners had failed to discharge. That the Department had made substantial efforts to recruit\nblacks was held beside the point and the fact that the racial distribution of recent hirings and of the\nDepartment itself might be roughly equivalent to the racial makeup of the surrounding community,\nbroadly conceived, was put aside as a \xe2\x80\x9ccomparison [not] material to this appeal.\xe2\x80\x9d The Court of Appeals,\nover a dissent, accordingly reversed the judgment of the District Court and directed that respondents\xe2\x80\x99\nmotion for partial summary judgment be granted. We granted the petition for certiorari. * * * *\n\nII\nBecause the Court of Appeals erroneously applied the legal standards applicable to Title VII cases in\nresolving the constitutional issue before it, we reverse its judgment in respondents\xe2\x80\x99 favor. * * * *\nAs the Court of Appeals understood Title VII, employees or applicants proceeding under it need not\nconcern themselves with the employer\xe2\x80\x99s possibly discriminatory purpose but instead may focus solely\non the racially differential impact of the challenged hiring or promotion practices. This is not the\nconstitutional rule. We have never held that the constitutional standard for adjudicating claims of\ninvidious racial discrimination is identical to the standards applicable under Title VII, and we decline\nto do so today.\nThe central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention\n140 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cof official conduct discriminating on the basis of race. It is also true that the Due Process Clause of\nthe Fifth Amendment contains an equal protection component prohibiting the United States from\ninvidiously discriminating between individuals or groups. Bolling v. Sharpe (1954). But our cases have\nnot embraced the proposition that a law or other official act, without regard to whether it reflects\na racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate\nimpact.\nAlmost 100 years ago, Strauder v. West Virginia (1880), established that the exclusion of Negroes\nfrom grand and petit juries in criminal proceedings violated the Equal Protection Clause, but the fact\nthat a particular jury or a series of juries does not statistically reflect the racial composition of the\ncommunity does not in itself make out an invidious discrimination forbidden by the Clause. \xe2\x80\x9cA purpose\nto discriminate must be present which may be proven by systematic exclusion of eligible jurymen\nof the proscribed race or by unequal application of the law to such an extent as to show intentional\ndiscrimination.\xe2\x80\x9d Akins v. Texas (1945). * * * *\nThe school desegregation cases have also adhered to the basic equal protection principle that the\ninvidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially\ndiscriminatory purpose. * * * *\nThis is not to say that the necessary discriminatory racial purpose must be express or appear\non the face of the statute, or that a law\xe2\x80\x99s disproportionate impact is irrelevant in cases involving\nConstitution-based claims of racial discrimination. A statute, otherwise neutral on its face, must not\nbe applied so as invidiously to discriminate on the basis of race. Yick Wo v. Hopkins (1886). It is also\nclear from the cases dealing with racial discrimination in the selection of juries that the systematic\nexclusion of Negroes is itself such an \xe2\x80\x9cunequal application of the law . . . as to show intentional\ndiscrimination.\xe2\x80\x9d Akins v. Texas * * * *\nNecessarily, an invidious discriminatory purpose may often be inferred from the totality of the\nrelevant facts, including the fact, if it is true, that the law bears more heavily on one race than\nanother. It is also not infrequently true that the discriminatory impact \xe2\x80\x93 in the jury cases for example,\nthe total or seriously disproportionate exclusion of Negroes from jury venires \xe2\x80\x93 may for all practical\npurposes demonstrate unconstitutionality because in various circumstances the discrimination is\nvery difficult to explain on nonracial grounds. Nevertheless, we have not held that a law, neutral\non its face and serving ends otherwise within the power of government to pursue, is invalid under\nthe Equal Protection Clause simply because it may affect a greater proportion of one race than of\nanother. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious\nracial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule,\nMcLaughlin v. Florida (1964), that racial classifications are to be subjected to the strictest scrutiny and\nare justifiable only by the weightiest of considerations.\nThere are some indications to the contrary in our cases. In Palmer v. Thompson (1971), the city of\nJackson, Miss., following a court decree to this effect, desegregated all of its public facilities save five\nswimming pools which had been operated by the city and which, following the decree, were closed\nby ordinance pursuant to a determination by the city council that closure was necessary to preserve\npeace and order and that integrated pools could not be economically operated. Accepting the finding\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 141\n\n\x0cthat the pools were closed to avoid violence and economic loss, this Court rejected the argument\nthat the abandonment of this service was inconsistent with the outstanding desegregation decree\nand that the otherwise seemingly permissible ends served by the ordinance could be impeached by\ndemonstrating that racially invidious motivations had prompted the city council\xe2\x80\x99s action. The holding\nwas that the city was not overtly or covertly operating segregated pools and was extending identical\ntreatment to both whites and Negroes. The opinion warned against grounding decision on legislative\npurpose or motivation, thereby lending support for the proposition that the operative effect of the law\nrather than its purpose is the paramount factor. But the holding of the case was that the legitimate\npurposes of the ordinance \xe2\x80\x93 to preserve peace and avoid deficits \xe2\x80\x93 were not open to impeachment by\nevidence that the council-men were actually motivated by racial considerations. Whatever dicta the\nopinion may contain, the decision did not involve, much less invalidate, a statute or ordinance having\nneutral purposes but disproportionate racial consequences.\nWright v. Council of City of Emporia (1972) also indicates that in proper circumstances, the racial\nimpact of a law, rather than its discriminatory purpose, is the critical factor. That case involved the\ndivision of a school district. The issue was whether the division was consistent with an outstanding\norder of a federal court to desegregate the dual school system found to have existed in the area.\nThe constitutional predicate for the District Court\xe2\x80\x99s invalidation of the divided district was \xe2\x80\x9cthe\nenforcement until 1969 of racial segregation in a public school system of which Emporia had always\nbeen a part.\xe2\x80\x9d There was thus no need to find \xe2\x80\x9can independent constitutional violation.\xe2\x80\x9d Citing Palmer\nv. Thompson, we agreed with the District Court that the division of the district had the effect of\ninterfering with the federal decree and should be set aside.\nThat neither Palmer nor Wright was understood to have changed the prevailing rule is apparent from\nKeyes v. School Dist. No. 1, where the principal issue in litigation was whether and to what extent there\nhad been purposeful discrimination resulting in a partially or wholly segregated school system. * * * *\nBoth before and after Palmer v. Thompson, however, various Courts of Appeals have held in several\ncontexts, including public employment, that the substantially disproportionate racial impact of a\nstatute or official practice standing alone and without regard to discriminatory purpose, suffices\nto prove racial discrimination violating the Equal Protection Clause absent some justification going\nsubstantially beyond what would be necessary to validate most other legislative classifications. The\ncases impressively demonstrate that there is another side to the issue; but, with all due respect, to the\nextent that those cases rested on or expressed the view that proof of discriminatory racial purpose is\nunnecessary in making out an equal protection violation, we are in disagreement.\nAs an initial matter, we have difficulty understanding how a law establishing a racially neutral\nqualification for employment is nevertheless racially discriminatory and denies \xe2\x80\x9cany person . . . equal\nprotection of the laws\xe2\x80\x9d simply because a greater proportion of Negroes fail to qualify than members\nof other racial or ethnic groups. Had respondents, along with all others who had failed Test 21,\nwhether white or black, brought an action claiming that the test denied each of them equal protection\nof the laws as compared with those who had passed with high enough scores to qualify them as\npolice recruits, it is most unlikely that their challenge would have been sustained. Test 21, which is\nadministered generally to prospective Government employees, concededly seeks to ascertain whether\nthose who take it have acquired a particular level of verbal skill; and it is untenable that the\n142 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cConstitution prevents the Government from seeking modestly to upgrade the communicative abilities\nof its employees rather than to be satisfied with some lower level of competence, particularly where\nthe job requires special ability to communicate orally and in writing. Respondents, as Negroes, could\nno more successfully claim that the test denied them equal protection than could white applicants\nwho also failed. The conclusion would not be different in the face of proof that more Negroes than\nwhites had been disqualified by Test 21. That other Negroes also failed to score well would, alone,\nnot demonstrate that respondents individually were being denied equal protection of the laws by the\napplication of an otherwise valid qualifying test being administered to prospective police recruits.\nNor on the facts of the case before us would the disproportionate impact of Test 21 warrant the\nconclusion that it is a purposeful device to discriminate against Negroes and hence an infringement\nof the constitutional rights of respondents as well as other black applicants. As we have said, the test\nis neutral on its face and rationally may be said to serve a purpose the Government is constitutionally\nempowered to pursue. Even agreeing with the District Court that the differential racial effect of Test\n21 called for further inquiry, we think the District Court correctly held that the affirmative efforts of\nthe Metropolitan Police Department to recruit black officers, the changing racial composition of the\nrecruit classes and of the force in general, and the relationship of the test to the training program\nnegated any inference that the Department discriminated on the basis of race or that \xe2\x80\x9ca police officer\nqualifies on the color of his skin rather than ability.\xe2\x80\x9d\nUnder Title VII, Congress provided that when hiring and promotion practices disqualifying\nsubstantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be\nproved, and that it is an insufficient response to demonstrate some rational basis for the challenged\npractices. It is necessary, in addition, that they be \xe2\x80\x9cvalidated\xe2\x80\x9d in terms of job performance in any\none of several ways, perhaps by ascertaining the minimum skill, ability, or potential necessary for\nthe position at issue and determining whether the qualifying tests are appropriate for the selection\nof qualified applicants for the job in question. However this process proceeds, it involves a more\nprobing judicial review of, and less deference to, the seemingly reasonable acts of administrators\nand executives than is appropriate under the Constitution where special racial impact, without\ndiscriminatory purpose, is claimed. We are not disposed to adopt this more rigorous standard for the\npurposes of applying the Fifth and the Fourteenth Amendments in cases such as this.\nA rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling\njustification, if in practice it benefits or burdens one race more than another would be far reaching\nand would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public\nservice, regulatory, and licensing statutes that may be more burdensome to the poor and to the\naverage black than to the more affluent white.\nGiven that rule, such consequences would perhaps be likely to follow. However, in our view, extension\nof the rule beyond those areas where it is already applicable by reason of statute, such as in the field\nof public employment, should await legislative prescription.\nAs we have indicated, it was error to direct summary judgment for respondents based on the Fifth\nAmendment.\n\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 143\n\n\x0cIII\n{procedural discussion omitted}\nThe judgment of the Court of Appeals accordingly is reversed.\nSo ordered.\nJUSTICE STEVENS, CONCURRING:\nFrequently the most probative evidence of intent will be objective evidence of what actually happened\nrather than evidence describing the subjective state of mind of the actor. For normally the actor is\npresumed to have intended the natural consequences of his deeds. This is particularly true in the case\nof governmental action which is frequently the product of compromise, of collective decisionmaking,\nand of mixed motivation. It is unrealistic, on the one hand, to require the victim of alleged\ndiscrimination to uncover the actual subjective intent of the decisionmaker or, conversely, to\ninvalidate otherwise legitimate action simply because an improper motive affected the deliberation of\na participant in the decisional process. A law conscripting clerics should not be invalidated because\nan atheist voted for it.\nMy point in making this observation is to suggest that the line between discriminatory purpose and\ndiscriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the\nCourt\xe2\x80\x99s opinion might assume. I agree, of course, that a constitutional issue does not arise every time\nsome disproportionate impact is shown. On the other hand, when the disproportion is as dramatic\nas in * * * * Yick Wo v. Hopkins, it really does not matter whether the standard is phrased in terms\nof purpose or effect. Therefore, although I accept the statement of the general rule in the Court\xe2\x80\x99s\nopinion, I am not yet prepared to indicate how that standard should be applied in the many cases\nwhich have formulated the governing standard in different language.\nJUSTICE BRENNAN, WITH WHOM JUSTICE MARSHALL JOINS, DISSENTING.\n{Omitted; the dissent argues that the Court of Appeals should be affirmed because petitioners have\nfailed to prove that Test 21 satisfies the applicable statutory standards under Title VII}.\n\nArlington Heights v. Metropolitan Housing Dev. Corp.\n429 U.S. 252 (1977)\n\n144 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cPOWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.J., AND STEWART, BLACKMUN, AND\nREHNQUIST, JJ., JOINED. MARSHALL, J., FILED AN OPINION CONCURRING IN PART AND DISSENTING IN PART, IN WHICH\nBRENNAN, J., JOINED. WHITE, J., FILED A DISSENTING OPINION. STEVENS, J., TOOK NO PART IN THE CONSIDERATION OR\nDECISION OF THE CASE.\nMR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT.\nIn 1971, respondent Metropolitan Housing Development Corporation (MHDC) applied to petitioner,\nthe Village of Arlington Heights, Ill., for the rezoning of a 15-acre parcel from single-family to multiple\nfamily classification. Using federal financial assistance, MHDC planned to build 190 clustered\ntownhouse units for low- and moderate-income tenants. The Village denied the rezoning request.\nMHDC, joined by other plaintiffs who are also respondents here, brought suit in the United States\nDistrict Court for the Northern District of Illinois. They alleged that the denial was racially\ndiscriminatory and that it violated, inter alia, the Fourteenth Amendment and the Fair Housing Act\nof 1968. Following a bench trial, the District Court entered judgment for the Village and respondents\nappealed. The Court of Appeals for the Seventh Circuit reversed, finding that the \xe2\x80\x9cultimate effect\xe2\x80\x9d of\nthe denial was racially discriminatory, and that the refusal to rezone therefore violated the Fourteenth\nAmendment. We granted the Village\xe2\x80\x99s petition for certiorari and now reverse.\n\nI\nArlington Heights is a suburb of Chicago, located about 26 miles northwest of the downtown Loop\narea. Most of the land in Arlington Heights is zoned for detached single-family homes, and this is in\nfact the prevailing land use. The Village experienced substantial growth during the 1960\xe2\x80\x99s, but, like\nother communities in northwest Cook County, its population of racial minority groups remained quite\nlow. According to the 1970 census, only 27 of the Village\xe2\x80\x99s 64,000 residents were black.\nThe Clerics of St. Viator, a religious order (Order), own an 80-acre parcel just east of the center of\nArlington Heights. Part of the site is occupied by the Viatorian high school, and part by the Order\xe2\x80\x99s\nthree-story novitiate building, which houses dormitories and a Montessori school. Much of the site,\nhowever, remains vacant. Since 1959, when the Village first adopted a zoning ordinance, all the land\nsurrounding the Viatorian property has been zoned R-3, a single-family specification with relatively\nsmall minimum lot-size requirements. On three sides of the Viatorian land there are single-family\nhomes just across a street; to the east, the Viatorian property directly adjoins the backyards of other\nsingle-family homes.\nThe Order decided in 1970 to devote some of its land to low- and moderate-income housing.\nInvestigation revealed that the most expeditious way to build such housing was to work through a\nnonprofit developer experienced in the use of federal housing subsidies under \xc2\xa7 236 of the National\nHousing Act. MHDC is such a developer. It was organized in 1968 by several prominent Chicago\ncitizens for the purpose of building low- and moderate-income housing throughout the Chicago area.\nIn 1970, MHDC was in the process of building one \xc2\xa7 236 development near Arlington Heights, and\nalready had provided some federally assisted housing on a smaller scale in other parts of the Chicago\narea.\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 145\n\n\x0cAfter some negotiation, MHDC and the Order entered into a 99-year lease and an accompanying\nagreement of sale covering a 15-acre site in the southeast corner of the Viatorian property. MHDC\nbecame the lessee immediately, but the sale agreement was contingent upon MHDC\xe2\x80\x99s securing zoning\nclearances from the Village and \xc2\xa7 236 housing assistance from the Federal Government. If MHDC\nproved unsuccessful in securing either, both the lease and the contract of sale would lapse. The\nagreement established a bargain purchase price of $300,000, low enough to comply with federal\nlimitations governing land-acquisition costs for \xc2\xa7 236 housing.\nMHDC engaged an architect and proceeded with the project, to be known as Lincoln Green. The plans\ncalled for 20 two-story buildings with a total of 190 units, each unit having its own private entrance\nfrom the outside. One hundred of the units would have a single bedroom, thought likely to attract\nelderly citizens. The remainder would have two, three, or four bedrooms. A large portion of the site\nwould remain open, with shrubs and trees to screen the homes abutting the property to the east.\nThe planned development did not conform to the Village\xe2\x80\x99s zoning ordinance, and could not be\nbuilt unless Arlington Heights rezoned the parcel to R-5, its multiple family housing classification.\nAccordingly, MHDC filed with the Village Plan Commission a petition for rezoning, accompanied\nby supporting materials describing the development and specifying that it would be subsidized\nunder \xc2\xa7 236. The materials made clear that one requirement under \xc2\xa7 236 is an affirmative marketing\nplan designed to assure that a subsidized development is racially integrated. MHDC also submitted\nstudies demonstrating the need for housing of this type and analyzing the probable impact of the\ndevelopment. To prepare for the hearings before the Plan Commission and to assure compliance\nwith the Village building code, fire regulations, and related requirements, MHDC consulted with the\nVillage staff for preliminary review of the development. The parties have stipulated that every change\nrecommended during such consultations was incorporated into the plans.\nDuring the spring of 1971, the Plan Commission considered the proposal at a series of three public\nmeetings, which drew large crowds. Although many of those attending were quite vocal and\ndemonstrative in opposition to Lincoln Green, a number of individuals and representatives of\ncommunity groups spoke in support of rezoning. Some of the comments, both from opponents and\nsupporters, addressed what was referred to as the \xe2\x80\x9csocial issue\xe2\x80\x9d\xe2\x80\x94the desirability or undesirability of\nintroducing at this location in Arlington Heights low- and moderate income housing, housing that\nwould probably be racially integrated.\nMany of the opponents, however, focused on the zoning aspects of the petition, stressing two\narguments. First, the area always had been zoned single-family, and the neighboring citizens had\nbuilt or purchased there in reliance on that classification. Rezoning threatened to cause a measurable\ndrop in property value for neighboring sites. Second, the Village\xe2\x80\x99s apartment policy, adopted by the\nVillage Board in 1962 and amended in 1970, called for R-5 zoning primarily to serve as a buffer between\nsingle-family development and land uses thought incompatible, such as commercial or manufacturing\ndistricts. Lincoln Green did not meet this requirement, as it adjoined no commercial or manufacturing\ndistrict.\nAt the close of the third meeting, the Plan Commission adopted a motion to recommend to the\nVillage\xe2\x80\x99s Board of Trustees that it deny the request. The motion stated: \xe2\x80\x9cWhile the need for low and\n146 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cmoderate income housing may exist in Arlington Heights or its environs, the Plan Commission would\nbe derelict in recommending it at the proposed location.\xe2\x80\x9d\nTwo members voted against the motion and submitted a minority report, stressing that, in their view,\nthe change to accommodate Lincoln Green represented \xe2\x80\x9cgood zoning.\xe2\x80\x9d The Village Board met on\nSeptember 28, 1971, to consider MHDC\xe2\x80\x99s request and the recommendation of the Plan Commission.\nAfter a public hearing, the Board denied the rezoning by a 6-1 vote.\nThe following June, MHDC and three Negro individuals filed this lawsuit against the Village, seeking\ndeclaratory and injunctive relief. A second nonprofit corporation and an individual of MexicanAmerican descent intervened as plaintiffs.\nThe trial resulted in a judgment for petitioners. Assuming that MHDC had standing to bring the suit,\nthe District Court held that the petitioners were not motivated by racial discrimination or intent to\ndiscriminate against low income groups when they denied rezoning, but rather by a desire \xe2\x80\x9cto protect\nproperty values and the integrity of the Village\xe2\x80\x99s zoning plan.\xe2\x80\x9d The District Court concluded also that\nthe denial would not have a racially discriminatory effect.\nA divided Court of Appeals reversed. It first approved the District Court\xe2\x80\x99s finding that the defendants\nwere motivated by a concern for the integrity of the zoning plan, rather than by racial discrimination.\nDeciding whether their refusal to rezone would have discriminatory effects was more complex. The\ncourt observed that the refusal would have a disproportionate impact on blacks. Based upon family\nincome, blacks constituted 40% of those Chicago area residents who were eligible to become tenants\nof Lincoln Green, although they composed a far lower percentage of total area population. * * * *\n{T}he Court of Appeals ruled that the denial of rezoning must be examined in light of its \xe2\x80\x9chistorical\ncontext and ultimate effect.\xe2\x80\x9d Northwest Cook County was enjoying rapid growth in employment\nopportunities and population, but it continued to exhibit a high degree of residential segregation.\nThe court held that Arlington Heights could not simply ignore this problem. Indeed, it found that the\nVillage had been \xe2\x80\x9cexploiting\xe2\x80\x9d the situation by allowing itself to become a nearly all-white community.\nThe Village had no other current plans for building low- and moderate-income housing, and no other\nR-5 parcels in the Village were available to MHDC at an economically feasible price.\nAgainst this background, the Court of Appeals ruled that the denial of the Lincoln Green proposal had\nracially discriminatory effects and could be tolerated only if it served compelling interests. Neither the\nbuffer policy nor the desire to protect property values met this exacting standard. The court therefore\nconcluded that the denial violated the Equal Protection Clause of the Fourteenth Amendment.\n\nII\n{standing discussion omitted}\n\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 147\n\n\x0cIII\nOur decision last Term, in Washington v. Davis (1976) made it clear that official action will not be\nheld unconstitutional solely because it results in a racially disproportionate impact. \xe2\x80\x9cDisproportionate\nimpact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.\xe2\x80\x9d Proof\nof racially discriminatory intent or purpose is required to show a violation of the Equal Protection\nClause. Although some contrary indications may be drawn from some of our cases, the holding in\nDavis reaffirmed a principle well established in a variety of contexts.\nDavis does not require a plaintiff to prove that the challenged action rested solely on racially\ndiscriminatory purposes. Rarely can it be said that a legislature or administrative body operating\nunder a broad mandate made a decision motivated solely by a single concern, or even that a particular\npurpose was the \xe2\x80\x9cdominant\xe2\x80\x9d or \xe2\x80\x9cprimary\xe2\x80\x9d one. In fact, it is because legislators and administrators\nare properly concerned with balancing numerous competing considerations that courts refrain from\nreviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial\ndiscrimination is not just another competing consideration. When there is a proof that a\ndiscriminatory purpose has been a motivating factor in the decision, this judicial deference is no\nlonger justified.\nDetermining whether invidious discriminatory purpose was a motivating factor demands a sensitive\ninquiry into such circumstantial and direct evidence of intent as may be available. The impact of the\nofficial action\xe2\x80\x94whether it \xe2\x80\x9cbears more heavily on one race than another,\xe2\x80\x9d Washington v. Davis,\xe2\x80\x94may\nprovide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than\nrace, emerges from the effect of the state action even when the governing legislation appears neutral\non its face. Yick Wo v. Hopkins (1886). The evidentiary inquiry is then relatively easy. But such cases\nare rare. Absent a pattern as stark as that in Yick Wo, impact alone is not determinative, and the Court\nmust look to other evidence.\nThe historical background of the decision is one evidentiary source, particularly if it reveals a series\nof official actions taken for invidious purposes. The specific sequence of events leading up to the\nchallenged decision also may shed some light on the decisionmaker\xe2\x80\x99s purposes. For example, if the\nproperty involved here always had been zoned R-5 but suddenly was changed to R-3 when the town\nlearned of MHDC\xe2\x80\x99s plan to erect integrated housing, we would have a far different case. Departures\nfrom the normal procedural sequence also might afford evidence that improper purposes are playing\na role. Substantive departures too may be relevant, particularly if the factors usually considered\nimportant by the decisionmaker strongly favor a decision contrary to the one reached.\nThe legislative or administrative history may be highly relevant, especially where there are\ncontemporary statements by members of the decisionmaking body, minutes of its meetings, or\nreports. In some extraordinary instances, the members might be called to the stand at trial to testify\nconcerning the purpose of the official action, although even then such testimony frequently will be\nbarred by privilege.\nThe foregoing summary identifies, without purporting to be exhaustive, subjects of proper inquiry in\n\n148 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cdetermining whether racially discriminatory intent existed. With these in mind, we now address the\ncase before us.\n\nIV\nThis case was tried in the District Court and reviewed in the Court of Appeals before our decision in\nWashington v. Davis. The respondents proceeded on the erroneous theory that the Village\xe2\x80\x99s refusal\nto rezone carried a racially discriminatory effect and was, without more, unconstitutional. But both\ncourts below understood that at least part of their function was to examine the purpose underlying\nthe decision.\nIn making its findings on this issue, the District Court noted that some of the opponents of Lincoln\nGreen who spoke at the various hearings might have been motivated by opposition to minority groups.\nThe court held, however, that the evidence \xe2\x80\x9cdoes not warrant the conclusion that this motivated the\ndefendants.\xe2\x80\x9d\nOn appeal, the Court of Appeals focused primarily on respondents\xe2\x80\x99 claim that the Village\xe2\x80\x99s buffer\npolicy had not been consistently applied and was being invoked with a strictness here that could\nonly demonstrate some other underlying motive. The court concluded that the buffer policy, though\nnot always applied with perfect consistency, had on several occasions formed the basis for the\nBoard\xe2\x80\x99s decision to deny other rezoning proposals. \xe2\x80\x9cThe evidence does not necessitate a finding\nthat Arlington Heights administered this policy in a discriminatory manner.\xe2\x80\x9d The Court of Appeals\ntherefore approved the District Court\xe2\x80\x99s findings concerning the Village\xe2\x80\x99s purposes in denying rezoning\nto MHDC.\nWe also have reviewed the evidence. The impact of the Village\xe2\x80\x99s decision does arguably bear more\nheavily on racial minorities. Minorities constitute 18% of the Chicago area population, and 40% of the\nincome groups said to be eligible for Lincoln Green. But there is little about the sequence of events\nleading up to the decision that would spark suspicion. The area around the Viatorian property has\nbeen zoned R-3 since 1959, the year when Arlington Heights first adopted a zoning map. Single-family\nhomes surround the 80-acre site, and the Village is undeniably committed to single-family homes as\nits dominant residential land use. The rezoning request progressed according to the usual procedures.\nThe Plan Commission even scheduled two additional hearings, at least in part to accommodate MHDC\nand permit it to supplement its presentation with answers to questions generated at the first hearing.\nThe statements by the Plan Commission and Village Board members, as reflected in the official\nminutes, focused almost exclusively on the zoning aspects of the MHDC petition, and the zoning\nfactors on which they relied are not novel criteria in the Village\xe2\x80\x99s rezoning decisions. There is\nno reason to doubt that there has been reliance by some neighboring property owners on the\nmaintenance of single-family zoning in the vicinity. The Village originally adopted its buffer policy\nlong before MHDC entered the picture, and has applied the policy too consistently for us to infer\ndiscriminatory purpose from its application in this case. Finally, MHDC called one member of the\nVillage Board to the stand at trial. Nothing in her testimony supports an inference of invidious\npurpose.\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 149\n\n\x0cIn sum, the evidence does not warrant overturning the concurrent findings of both courts below.\nRespondents simply failed to carry their burden of proving that discriminatory purpose was a\nmotivating factor in the Village\xe2\x80\x99s decision.\nThis conclusion ends the constitutional inquiry. The Court of Appeals\xe2\x80\x99 further finding that the Village\xe2\x80\x99s\ndecision carried a discriminatory \xe2\x80\x9cultimate effect\xe2\x80\x9d is without independent constitutional significance.\n\nV\n{Fair Housing Act discussion omitted}\nReversed and remanded.\n{Omitted opinions suggested that the decision should have been remanded to the Court of Appeals to\nreconsider in light of Washington v. Davis}.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=34#h5p-59\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=34#h5p-60\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=34#h5p-61\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=34#h5p-62\n\n150 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=34#h5p-63\n\nNotes\n1. Be prepared to list the factors articulated by the Court in Arlington Heights for determining intent.\n2. The Court further explained the intent requirement in Personnel Administrator of Massachusetts\nv. Feeney, 442 U.S. 256 (1979), a challenge to Massachusetts\xe2\x80\x99 veterans\xe2\x80\x99 preference statute regarding\ncivil service positions. In an opinion by Justice Stewart, the Court stated that the decision to grant\na preference to veterans was \xe2\x80\x9cintentional\xe2\x80\x9d and \xe2\x80\x9cit cannot seriously be argued that the Legislature of\nMassachusetts could have been unaware that most veterans are men.\xe2\x80\x9d Nevertheless,\n\xe2\x80\x9cDiscriminatory purpose,\xe2\x80\x9d however, implies more than intent as volition or intent as awareness\nof consequences. It implies that the decisionmaker, in this case a state legislature, selected or\nreaffirmed a particular course of action at least in part \xe2\x80\x9cbecause of,\xe2\x80\x9d not merely \xe2\x80\x9cin spite of,\xe2\x80\x9d its\nadverse effects upon an identifiable group. Yet nothing in the record demonstrates that this\npreference for veterans was originally devised or subsequently reenacted because it would\naccomplish the collateral goal of keeping women in a stereotypic and predefined place in the\nMassachusetts Civil Service.\nTo the contrary, the statutory history shows that the benefit of the preference was\nconsistently offered to \xe2\x80\x9cany person\xe2\x80\x9d who was a veteran. That benefit has been extended to\nwomen under a very broad statutory definition of the term veteran.\n3. A famous critique of the intent test is articulated by Critical Race Theorist Professor Charles R.\nLawrence III, in The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan.\nL. Rev. 317 (1987). Professor Lawrence argues that most racism (and other prejudice) is not overt but\nis the product of unconscious bias. He suggests that a better method \xe2\x80\x9cwould evaluate governmental\nconduct to see if it conveys a symbolic message to which the culture attaches racial significance.\xe2\x80\x9d\nOthers have suggested that this \xe2\x80\x9csymbolic message\xe2\x80\x9d test would itself be subject to unconscious bias in\nits articulation and application.\n4. Be prepared to identify the slippery slope rationale articulated by Justice White in Washington v.\nDavis. Do you agree?\n5. Yick Wo (1886) is the most famous of the trio sometimes called \xe2\x80\x9cthe Chinese Laundry Cases;\xe2\x80\x9d the\nother cases are Barbier v. Connolly, 113 U.S. 27 (1884), and Soon Hing v. Crowley, 113 U.S. 703 (1885),\nalso involving San Francisco. An important principle of these cases is that \xe2\x80\x9csubjects of the Emperor of\nCHAPTER FOUR: Race and Equal Protection - Part 1 | 151\n\n\x0cChina\xe2\x80\x9d and thus all non-citizens were included by the term \xe2\x80\x9cperson\xe2\x80\x9d in the Fourteenth Amendment.\nNote that the so-called Chinese Exclusion Act, Sess. I, Chap. 126; 22 Stat. 58 (1882), sought to limit\nimmigration and excluded Chinese persons from becoming citizens.\nThus, Yick Wo is a foundational case in two distinct Equal Protection doctrines: intent and non-citizen\ncoverage.\n\nCheck Your Understanding\nCALI Lesson: Race and Equal Protection\nCALI, The Center for Assisted Legal Instruction, has a lesson designed to further your understanding\nof the constitutional issues, doctrine, and theories regarding the legal treatment of race under the\nEqual Protection Clause of the Fourteenth Amendment as well as under other constitutional\nprovisions (with the exception of \xe2\x80\x9caffirmative action\xe2\x80\x9d which is the subject of a separate lesson). This\nlesson begins with an overview of slavery in constitutional law, proceeds to the early cases under\nthe Reconstruction Amendments, concentrates on the development of the strict scrutiny standard,\nand considers how seemingly neutral classifications may be deemed to be racial classifications. This\ncompletion time for this lesson is approximately 80 minutes.\n\n152 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cCHAPTER FOUR: Race and Equal\nProtection - Part 2\nV. Affirmative Action\nA. The Standard of Scrutiny\nNote: Bakke\nThe first university affirmative action case to come before the Court was Regents of the University of\nCalifornia v. Bakke, 438 U.S. 265 (1978). It resulted in a highly fractured decision and highlights many\nof the doctrinal and theoretical issues that continue to permeate affirmative action.\nThe University of California at Davis Medical School twice rejected Allan Bakke, a white man, for\nadmission for two years. The Medical School\xe2\x80\x99s admissions goal was 100 students, with 16 seats in\nthe \xe2\x80\x9cspecial admissions program\xe2\x80\x9d for applicants who wished to be considered as members of a\n\xe2\x80\x9cminority group,\xe2\x80\x9d \xe2\x80\x9cwhich the Medical School apparently viewed as \xe2\x80\x9cBlacks,\xe2\x80\x9d \xe2\x80\x9cChicanos,\xe2\x80\x9d \xe2\x80\x9cAsians,\xe2\x80\x9d and\n\xe2\x80\x9cAmerican Indians.\xe2\x80\x9d He sued in California state court on the basis of the Fourteenth Amendment\xe2\x80\x99s\nEqual Protection Clause, as well as the California constitution, and statutes. The California Supreme\nCourt ruled in his favor on the Equal Protection claim.\nThe United States Supreme Court\xe2\x80\x99s decision affirmed the California Supreme Court, but there was no\nclear majority opinion. Justice Powell, however, rendered the \xe2\x80\x9cjudgment of the Court\xe2\x80\x9d \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x93 yet Justice\nPowell was the only Justice in this majority judgment who rested his decision on the Equal Protection\nClause; the other Justices who ruled in favor of Bakke and against the university rested their decision\non Title VI of the Civil Rights Act. On the other hand, four Justices \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x93 Brennan, White, Marshall, and\nBlackmun \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x93 would have ruled that the university special admissions program did not violate the\nEqual Protection Clause.\nPowell contended that strict scrutiny should apply:\nEn route to this crucial battle over the scope of judicial review, the parties fight a sharp\npreliminary action over the proper characterization of the special admissions program.\nPetitioner prefers to view it as establishing a \xe2\x80\x9cgoal\xe2\x80\x9d of minority representation in the Medical\nSchool. Respondent, echoing the courts below, labels it a racial quota.\nThis semantic distinction is beside the point: the special admissions program is undeniably a\nclassification based on race and ethnic background. To the extent that there existed a pool\nof at least minimally qualified minority applicants to fill the 16 special admissions seats, white\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 153\n\n\x0capplicants could compete only for 84 seats in the entering class, rather than the 100 open to\nminority applicants. Whether this limitation is described as a quota or a goal, it is a line drawn\non the basis of race and ethnic status.\nThe guarantees of the Fourteenth Amendment extend to all persons. Its language is explicit:\n\xe2\x80\x9cNo State shall . . . deny to any person within its jurisdiction the equal protection of the laws.\xe2\x80\x9d\nIt is settled beyond question that the rights created by the first section of the Fourteenth\nAmendment are, by its terms, guaranteed to the individual. The rights established are personal\nrights, Shelley v. Kraemer. Accord, Missouri ex rel. Gaines v. Canada. The guarantee of equal\nprotection cannot mean one thing when applied to one individual and something else when\napplied to a person of another color. If both are not accorded the same protection, then it is\nnot equal.\nNevertheless, petitioner argues that the court below erred in applying strict scrutiny to the\nspecial admissions program because white males, such as respondent, are not a \xe2\x80\x9cdiscrete and\ninsular minority\xe2\x80\x9d requiring extraordinary protection from the majoritarian political process.\nCarolene Products Co. This rationale, however, has never been invoked in our decisions as a\nprerequisite to subjecting racial or ethnic distinctions to strict scrutiny. Nor has this Court\nheld that discreteness and insularity constitute necessary preconditions to a holding that a\nparticular classification is invidious. These characteristics may be relevant in deciding whether\nor not to add new types of classifications to the list of \xe2\x80\x9csuspect\xe2\x80\x9d categories or whether a\nparticular classification survives close examination. Racial and ethnic classifications, however,\nare subject to stringent examination without regard to these additional characteristics. We\ndeclared as much in the first cases explicitly to recognize racial distinctions as suspect:\n\xe2\x80\x9cDistinctions between citizens solely because of their ancestry are, by their very nature,\nodious to a free people whose institutions are founded upon the doctrine of equality.\xe2\x80\x9d\nHirabayashi.\nJustice Powell then considered the interests asserted and whether the means chosen (the 16 seats)\nwas narrowly tailored to achieve that interest. The purposes put forward by the university were these:\n1.\n\n\xe2\x80\x9creducing the historic deficit of traditionally disfavored minorities in medical schools and in the\nmedical profession,\xe2\x80\x9d\n\n2. countering the effects of societal discrimination;\n3. increasing the number of physicians who will practice in communities currently underserved;\nand\n4. obtaining the educational benefits that flow from an ethnically diverse student body.\nPowell rejected the first interest as facially invalid because it prefers one group over another. He\nconcluded that the university did not have a sufficient basis or competency to make a finding of\nsocietal discrimination. As to the third, he found that while \xe2\x80\x9ca State\xe2\x80\x99s interest in facilitating the health\ncare of its citizens\xe2\x80\x9d might be \xe2\x80\x9csufficiently compelling to support the use of a suspect classification,\xe2\x80\x9d\nhere there was not a close enough fit because there \xe2\x80\x9cis no empirical data to demonstrate that any\none race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive.\xe2\x80\x9d\n154 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cFinally, Powell concluded that attainment of a diverse student body \xe2\x80\x9cclearly is a constitutionally\npermissible goal for an institution of higher education.\xe2\x80\x9d However, again the university program was\nnot sufficiently narrowly tailored for Powell:\nIt may be assumed that the reservation of a specified number of seats in each class for\nindividuals from the preferred ethnic groups would contribute to the attainment of\nconsiderable ethnic diversity in the student body. But petitioner\xe2\x80\x99s argument that this is the\nonly effective means of serving the interest of diversity is seriously flawed. In a most\nfundamental sense, the argument misconceives the nature of the state interest that would\njustify consideration of race or ethnic background. It is not an interest in simple ethnic\ndiversity, in which a specified percentage of the student body is in effect guaranteed to\nbe members of selected ethnic groups, with the remaining percentage an undifferentiated\naggregation of students. The diversity that furthers a compelling state interest encompasses a\nfar broader array of qualifications and characteristics, of which racial or ethnic origin is but a\nsingle, though important, element. Petitioner\xe2\x80\x99s special admissions program, focused solely on\nethnic diversity, would hinder, rather than further, attainment of genuine diversity.\nPowell lauded the Harvard College Admissions Program and appended a description of the policy to\nhis opinion.\nFor the oft-called \xe2\x80\x9cBrennan four,\xe2\x80\x9d the university\xe2\x80\x99s affirmative action plan should be subject only\nto intermediate scrutiny rather than strict scrutiny. Generally, intermediate scrutiny requires an\nimportant (rather than compelling) government interest that is served by substantially related means\n(rather than narrowly tailored). While the Brennan four recognized that there was a racial\nclassification, they argued that it was a benign (rather than invidious) classification. They would have\nheld that the University of California at Davis satisfied this intermediate scrutiny standard.\nJustice Blackmun, who joined the Brennan four, also wrote separately and stated:\nI suspect that it would be impossible to arrange an affirmative action program in a racially\nneutral way and have it successful. To ask that this be so is to demand the impossible. In order\nto get beyond racism, we must first take account of race. There is no other way. And in order\nto treat some persons equally, we must treat them differently. We cannot\xe2\x80\x94we dare not\xe2\x80\x94let\nthe Equal Protection Clause perpetuate racial supremacy.\n\nNote: Fullilove and Wygant\nDuring the 1980s, the increasingly divisive \xe2\x80\x9caffirmative action\xe2\x80\x9d debate included the legal issue of how\naffirmative action programs and policies should be evaluated by courts. The United States Supreme\nCourt\xe2\x80\x99s opinions did little to solve the issue because the Court itself was divided.\nIn Fullilove v. Klutznick, 448 U.S. 448 (1980), a 6 Justice majority upheld the \xe2\x80\x9cminority business\nenterprise\xe2\x80\x9d (MBE) provision of the federal Public Works Employment Act of 1977 which required that,\nabsent an administrative waiver, at least 10% of federal funds granted for local public works projects\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 155\n\n\x0cmust be used by the state or local grantee to procure services or supplies from businesses owned\nby minority group members, defined as United States citizens \xe2\x80\x9cwho are Negroes, Spanish-speaking,\nOrientals, Indians, Eskimos, and Aleuts.\xe2\x80\x9d The main plurality opinion, by Chief Justice Burger, joined\nby two other Justices (White and Powell), concluded that the \xe2\x80\x9cremedial\xe2\x80\x9d MBE program on its face\ndid not violate the equal protection component of the Due Process Clause of the Fifth Amendment.\nBurger\xe2\x80\x99s opinion rejected arguments that the MBE program was underinclusive or overinclusive. Three\nother Justices, in an opinion by Justice Thurgood Marshall and joined by Brennan and Blackmun,\nconcurred, but concluded that the proper inquiry for determining the constitutionality of racial\nclassifications that provide benefits to minorities for the purpose of remedying the present effects of\npast racial discrimination is whether the classifications serve important governmental objectives and\nare substantially related to achievement of those objectives.\nIn Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), the Court held unconstitutional an\nexemption to a \xe2\x80\x9clast-hired first-fired\xe2\x80\x9d collective bargaining provision between a teachers\xe2\x80\x99 union and\nBoard of Education in Jackson, Michigan that sought to maintain the current level of \xe2\x80\x9cminority\npersonnel\xe2\x80\x9d (defined as \xe2\x80\x9cBlack, American Indian, Oriental, or Spanish descendancy\xe2\x80\x9d). Wygant and other\nnonminority teachers who faced being laid off, challenged the agreement entered into by the school\nboard. The plurality opinion by Justice Powell, joined by Chief Justice Burger, Justice Rehnquist, and in\npart by Justice O\xe2\x80\x99Connor), applied strict scrutiny, and held that the lay off plan did not have a strong\nbasis in the evidence that remedial action was necessary to address the school\xe2\x80\x99s own discrimination\nand that the desire for role models for students was not compelling. Justice White concurred but\nwrote separately. Four other Justices dissented.\nNote that Fullilove challenged an act by Congress (and thus invoked the Fifth Amendment) and\nWygnant challenged an act by a subdivision of the state of Michigan (and thus invoked the Fourteenth\nAmendment).\nThe next case includes discussions of both Fullilove and Wygant.\n\nCity of Richmond v. J.A. Croson Co.\n488 U.S. 469 (1989)\nO\xe2\x80\x99CONNOR, J., ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED THE OPINION OF THE COURT WITH RESPECT\nTO PARTS I, III-B, AND IV, IN WHICH REHNQUIST, C. J., AND WHITE, STEVENS, AND KENNEDY, JJ., JOINED, AN OPINION\nWITH RESPECT TO PART II, IN WHICH REHNQUIST, C. J., AND WHITE, J., JOINED, AND AN OPINION WITH RESPECT TO\nPARTS III-A AND V, IN WHICH REHNQUIST, C. J., AND WHITE AND KENNEDY, JJ., JOINED. STEVENS, J., AND KENNEDY, J.,\nFILED {SEPARATE} OPINIONS CONCURRING IN PART AND CONCURRING IN THE JUDGMENT. SCALIA, J., FILED AN OPINION\nCONCURRING IN THE JUDGMENT. MARSHALL, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN AND BLACKMUN, JJ.,\nJOINED. BLACKMUN, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN, J., JOINED.\nO\xe2\x80\x99CONNOR, J., ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED THE OPINION OF THE COURT WITH RESPECT\nTO PARTS I, III-B, AND IV, IN WHICH REHNQUIST, C. J., AND WHITE, STEVENS, AND KENNEDY, JJ., JOINED, AN OPINION\nWITH RESPECT TO PART II, IN WHICH REHNQUIST, C. J., AND WHITE, J., JOINED, AND AN OPINION WITH RESPECT TO\n156 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cPARTS III-A AND V, IN WHICH REHNQUIST, C. J., AND WHITE AND KENNEDY, JJ., JOINED.\nIn this case, we confront once again the tension between the Fourteenth Amendment\xe2\x80\x99s guarantee\nof equal treatment to all citizens, and the use of race-based measures to ameliorate the effects of\npast discrimination on the opportunities enjoyed by members of minority groups in our society.\nIn Fullilove v. Klutznick (1980), we held that a congressional program requiring that 10% of certain\nfederal construction grants be awarded to minority contractors did not violate the equal protection\nprinciples embodied in the Due Process Clause of the Fifth Amendment. Relying largely on our\ndecision in Fullilove, some lower federal courts have applied a similar standard of review in assessing\nthe constitutionality of state and local minority set-aside provisions under the Equal Protection\nClause of the Fourteenth Amendment. * * * * We noted probable jurisdiction in this case to consider\n* * * * a minority set-aside program adopted by the city of Richmond, Virginia.\n\nI\nOn April 11, 1983, the Richmond City Council adopted the Minority Business Utilization Plan (the Plan).\nThe Plan required prime contractors to whom the city awarded construction contracts to subcontract\nat least 30% of the dollar amount of the contract to one or more Minority Business Enterprises\n(MBE\xe2\x80\x99s). Ordinance No. 83-69-59, codified in Richmond, Va., City Code, 12-156(a) (1985). The 30% setaside did not apply to city contracts awarded to minority-owned prime contractors.\nThe Plan defined an MBE as \xe2\x80\x9c[a] business at least fifty-one (51) percent of which is owned and\ncontrolled . . . by minority group members.\xe2\x80\x9d \xe2\x80\x9cMinority group members\xe2\x80\x9d were defined as \xe2\x80\x9c[c]itizens of\nthe United States who are Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts.\xe2\x80\x9d There was\nno geographic limit to the Plan; an otherwise qualified MBE from anywhere in the United States could\navail itself of the 30% set-aside. The Plan declared that it was \xe2\x80\x9cremedial\xe2\x80\x9d in nature, and enacted \xe2\x80\x9cfor\nthe purpose of promoting wider participation by minority business enterprises in the construction of\npublic projects.\xe2\x80\x9d The Plan expired on June 30, 1988, and was in effect for approximately five years.\nThe Plan authorized the Director of the Department of General Services to promulgate rules which\n\xe2\x80\x9cshall allow waivers in those individual situations where a contractor can prove to the satisfaction of\nthe director that the requirements herein cannot be achieved.\xe2\x80\x9d* * * *\nThe Director also promulgated \xe2\x80\x9cpurchasing procedures\xe2\x80\x9d to be followed in the letting of city contracts\nin accordance with the Plan. Bidders on city construction contracts were provided with a \xe2\x80\x9cMinority\nBusiness Utilization Plan Commitment Form.\xe2\x80\x9d Within 10 days of the opening of the bids, the lowest\notherwise responsive bidder was required to submit a commitment form naming the MBE\xe2\x80\x99s to be used\non the contract and the percentage of the total contract price awarded to the minority firm or firms.\n****\nThe Plan was adopted by the Richmond City Council after a public hearing. Seven members of\nthe public spoke to the merits of the ordinance: five were in opposition, two in favor. Proponents\nof the set-aside provision relied on a study which indicated that, while the general population of\nRichmond was 50% black, only 0.67% of the city\xe2\x80\x99s prime construction contracts had been awarded\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 157\n\n\x0cto minority businesses in the 5-year period from 1978 to 1983. It was also established that a variety\nof contractors\xe2\x80\x99 associations, whose representatives appeared in opposition to the ordinance, had\nvirtually no minority businesses within their membership. The city\xe2\x80\x99s legal counsel indicated his view\nthat the ordinance was constitutional under this Court\xe2\x80\x99s decision in Fullilove * * * *\n{J. A. Croson Company (Croson), a mechanical plumbing and heating contractor, had a successful bid\nfor the provision and installation of certain plumbing fixtures at the city jail. But the City decided to\nrebid the project because Croson could not comply with the MBE requirement, although the company\nattempted to have a MBE supply fixtures and attempted to get a waiver. Croson sued in federal district\ncourt, challenging the constitutionality of the plan. The procedural history included two decisions by\nthe Fourth Circuit Court of Appeals.}\nThe District Court upheld the Plan in all respects. In its original opinion, a divided panel of the Fourth\nCircuit Court of Appeals affirmed. Both courts applied a test derived from \xe2\x80\x9cthe common concerns\narticulated by the various Supreme Court opinions\xe2\x80\x9d in Fullilove and Bakke. Relying on the great\ndeference which this Court accorded Congress\xe2\x80\x99 findings of past discrimination in Fullilove, the panel\nmajority indicated its view that the same standard should be applied to the Richmond City Council.\n****\nCroson sought certiorari from this Court. We granted the writ, vacated the opinion of the Court\nof Appeals, and remanded the case for further consideration in light of our intervening decision in\nWygant v. Jackson Board of Education (1986).\nOn remand, a divided panel of the Court of Appeals struck down the Richmond set-aside program\nas violating both prongs of strict scrutiny under the Equal Protection Clause of the Fourteenth\nAmendment. The majority found that the \xe2\x80\x9ccore\xe2\x80\x9d of this Court\xe2\x80\x99s holding in Wygant was that, \xe2\x80\x9c[t]o show\nthat a plan is justified by a compelling governmental interest, a municipality that wishes to employ a\nracial preference cannot rest on broad-brush assumptions of historical discrimination.\xe2\x80\x9d As the court\nread this requirement, \xe2\x80\x9c[f]indings of societal discrimination will not suffice; the findings must concern\n\xe2\x80\x98prior discrimination by the government unit involved.\xe2\x80\x99\xe2\x80\x9d\nIn this case, the debate at the city council meeting \xe2\x80\x9crevealed no record of prior discrimination by the\ncity in awarding public contracts . . . .\xe2\x80\x9d Moreover, the statistics comparing the minority population of\nRichmond to the percentage of prime contracts awarded to minority firms had little or no probative\nvalue in establishing prior discrimination in the relevant market, and actually suggested \xe2\x80\x9cmore of a\npolitical than a remedial basis for the racial preference.\xe2\x80\x9d ****\nThe Court of Appeals went on to hold that even if the city had demonstrated a compelling interest in\nthe use of a race-based quota, the 30% set-aside was not narrowly tailored to accomplish a remedial\npurpose. The court found that the 30% figure was \xe2\x80\x9cchosen arbitrarily\xe2\x80\x9d and was not tied to the number\nof minority subcontractors in Richmond or to any other relevant number. The dissenting judge argued\nthat the majority had \xe2\x80\x9cmisconstrue[d] and misapplie[d]\xe2\x80\x9d our decision in Wygant. We noted probable\njurisdiction of the city\xe2\x80\x99s appeal, and we now affirm the judgment.\n\n158 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cII\nThe parties and their supporting amici fight an initial battle over the scope of the city\xe2\x80\x99s power to\nadopt legislation designed to address the effects of past discrimination. Relying on our decision in\nWygant, appellee argues that the city must limit any race-based remedial efforts to eradicating the\neffects of its own prior discrimination. This is essentially the position taken by the Court of Appeals\nbelow. Appellant argues that our decision in Fullilove is controlling, and that as a result the city of\nRichmond enjoys sweeping legislative power to define and attack the effects of prior discrimination\nin its local construction industry. We find that neither of these two rather stark alternatives can\nwithstand analysis.\nIn Fullilove, we upheld the minority set-aside contained in 103(f)(2) of the Public Works Employment\nAct of 1977, Pub. L. 95-28, 91 Stat. 116, 42 U.S.C. 6701 et seq. (Act) against a challenge based on the equal\nprotection component of the Due Process Clause. The Act authorized a $4 billion appropriation for\nfederal grants to state and local governments for use in public works projects. The primary purpose\nof the Act was to give the national economy a quick boost in a recessionary period; funds had to\nbe committed to state or local grantees by September 30, 1977. The Act also contained the following\nrequirement: \xe2\x80\x9c\xe2\x80\x98Except to the extent the Secretary determines otherwise, no grant shall be made under\nthis Act . . . unless the applicant gives satisfactory assurance to the Secretary that at least 10 per\ncentum of the amount of each grant shall be expended for minority business enterprises.\xe2\x80\x99\xe2\x80\x9d MBE\xe2\x80\x99s\nwere defined as businesses effectively controlled by \xe2\x80\x9ccitizens of the United States who are Negroes,\nSpanish-speaking, Orientals, Indians, Eskimos, and Aleuts.\xe2\x80\x9d\nThe principal opinion in Fullilove, written by Chief Justice Burger, did not employ \xe2\x80\x9cstrict scrutiny\xe2\x80\x9d\nor any other traditional standard of equal protection review. The Chief Justice noted at the outset\nthat although racial classifications call for close examination, the Court was at the same time \xe2\x80\x9cbound\nto approach [its] task with appropriate deference to the Congress, a co-equal branch charged by\nthe Constitution with the power to \xe2\x80\x98provide for the . . . general Welfare of the United States\xe2\x80\x99 and \xe2\x80\x98to\nenforce by appropriate legislation,\xe2\x80\x99 the equal protection guarantees of the Fourteenth Amendment.\xe2\x80\x9d\n****\nBecause of {Congress\xe2\x80\x99s} unique powers, the Chief Justice concluded that \xe2\x80\x9cCongress not only may\ninduce voluntary action to assure compliance with existing federal statutory or constitutional\nantidiscrimination provisions, but also, where Congress has authority to declare certain conduct\nunlawful, it may, as here, authorize and induce state action to avoid such conduct.\xe2\x80\x9d\nIn reviewing the legislative history behind the Act, the principal opinion focused on the evidence\nbefore Congress that a nationwide history of past discrimination had reduced minority participation\nin federal construction grants. The Chief Justice also noted that Congress drew on its experience\nunder 8(a) of the Small Business Act of 1953, which had extended aid to minority businesses. The Chief\nJustice concluded that \xe2\x80\x9cCongress had abundant historical basis from which it could conclude that\ntraditional procurement practices, when applied to minority businesses, could perpetuate the effects\nof prior discrimination.\xe2\x80\x9d\nThe second factor emphasized by the principal opinion in Fullilove was the flexible nature of the 10%\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 159\n\n\x0cset-aside. * * * *The Chief Justice indicated that without this fine tuning to remedial purpose, the\nstatute would not have \xe2\x80\x9cpass[ed] muster.\xe2\x80\x9d\nIn his concurring opinion, Justice Powell relied on the legislative history adduced by the principal\nopinion in finding that \xe2\x80\x9cCongress reasonably concluded that private and governmental discrimination\nhad contributed to the negligible percentage of public contracts awarded minority contractors.\xe2\x80\x9d\nJustice Powell also found that the means chosen by Congress, particularly in light of the flexible waiver\nprovisions, were \xe2\x80\x9creasonably necessary\xe2\x80\x9d to address the problem identified. * * * *\nAppellant and its supporting amici rely heavily on Fullilove for the proposition that a city council, like\nCongress, need not make specific findings of discrimination to engage in race-conscious relief. * * * *\nThat Congress may identify and redress the effects of society-wide discrimination does not mean\nthat, a fortiori, the States and their political subdivisions are free to decide that such remedies are\nappropriate. Section 1 of the Fourteenth Amendment is an explicit constraint on state power, and\nthe States must undertake any remedial efforts in accordance with that provision. To hold otherwise\nwould be to cede control over the content of the Equal Protection Clause to the 50 state legislatures\nand their myriad political subdivisions. The mere recitation of a benign or compensatory purpose\nfor the use of a racial classification would essentially entitle the States to * * * * insulate any racial\nclassification from judicial scrutiny* * * *. We believe that such a result would be contrary to the\nintentions of the Framers of the Fourteenth Amendment, who desired to place clear limits on the\nStates\xe2\x80\x99 use of race as a criterion for legislative action, and to have the federal courts enforce those\nlimitations. * * * *\nIt would seem equally clear, however, that a state or local subdivision (if delegated the authority from\nthe State) has the authority to eradicate the effects of private discrimination within its own legislative\njurisdiction. This authority must, of course, be exercised within the constraints of 1 of the Fourteenth\nAmendment. Our decision in Wygant is not to the contrary. Wygant addressed the constitutionality\nof the use of racial quotas by local school authorities pursuant to an agreement reached with the\nlocal teachers\xe2\x80\x99 union. It was in the context of addressing the school board\xe2\x80\x99s power to adopt a racebased layoff program affecting its own work force that the Wygant plurality indicated that the Equal\nProtection Clause required \xe2\x80\x9csome showing of prior discrimination by the governmental unit involved.\xe2\x80\x9d\n****\nThus, if the city could show that it had essentially become a \xe2\x80\x9cpassive participant\xe2\x80\x9d in a system of racial\nexclusion practiced by elements of the local construction industry, we think it clear that the city could\ntake affirmative steps to dismantle such a system. It is beyond dispute that any public entity, state or\nfederal, has a compelling interest in assuring that public dollars, drawn from the tax contributions of\nall citizens, do not serve to finance the evil of private prejudice.\n\n160 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cIII\nA\nThe Equal Protection Clause of the Fourteenth Amendment provides that \xe2\x80\x9c[n]o State shall . . . deny to\nany person within its jurisdiction the equal protection of the laws.\xe2\x80\x9d (Emphasis added.) As this Court\nhas noted in the past, the \xe2\x80\x9crights created by the first section of the Fourteenth Amendment are, by\nits terms, guaranteed to the individual. The rights established are personal rights.\xe2\x80\x9d Shelley v. Kraemer\n(1948). The Richmond Plan denies certain citizens the opportunity to compete for a fixed percentage\nof public contracts based solely upon their race. To whatever racial group these citizens belong, their\n\xe2\x80\x9cpersonal rights\xe2\x80\x9d to be treated with equal dignity and respect are implicated by a rigid rule erecting\nrace as the sole criterion in an aspect of public decisionmaking.\nAbsent searching judicial inquiry into the justification for such race-based measures, there is simply\nno way of determining what classifications are \xe2\x80\x9cbenign\xe2\x80\x9d or \xe2\x80\x9cremedial\xe2\x80\x9d and what classifications are in\nfact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose\nof strict scrutiny is to \xe2\x80\x9csmoke out\xe2\x80\x9d illegitimate uses of race by assuring that the legislative body is\npursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that\nthe means chosen \xe2\x80\x9cfit\xe2\x80\x9d this compelling goal so closely that there is little or no possibility that the\nmotive for the classification was illegitimate racial prejudice or stereotype.\nClassification based on race carry a danger of stigmatic harm. Unless they are strictly reserved for\nremedial settings, they may in fact promote notions of racial inferiority and lead to a politics of\nracial hostility. See Bakke (opinion of Powell, J.) (\xe2\x80\x9c[P]referential programs may only reinforce common\nstereotypes holding that certain groups are unable to achieve success without special protection\nbased on a factor having no relation to individual worth\xe2\x80\x9d). We thus reaffirm the view expressed by the\nplurality in Wygant that the standard of review under the Equal Protection Clause is not dependent\non the race of those burdened or benefited by a particular classification. * * * *\nEven were we to accept a reading of the guarantee of equal protection under which the level\nof scrutiny varies according to the ability of different groups to defend their interests in the\nrepresentative process, heightened scrutiny would still be appropriate in the circumstances of this\ncase. One of the central arguments for applying a less exacting standard to \xe2\x80\x9cbenign\xe2\x80\x9d racial\nclassifications is that such measures essentially involve a choice made by dominant racial groups to\ndisadvantage themselves. If one aspect of the judiciary\xe2\x80\x99s role under the Equal Protection Clause is to\nprotect \xe2\x80\x9cdiscrete and insular minorities\xe2\x80\x9d from majoritarian prejudice or indifference, see United States\nv. Carolene Products Co., n. 4 (1938), some maintain that these concerns are not implicated when the\n\xe2\x80\x9cwhite majority\xe2\x80\x9d places burdens upon itself. See J. Ely, Democracy and Distrust 170 (1980).\nIn this case, blacks constitute approximately 50% of the population of the city of Richmond. Five of the\nnine seats on the city council are held by blacks. The concern that a political majority will more easily\nact to the disadvantage of a minority based on unwarranted assumptions or incomplete facts would\nseem to militate for, not against, the application of heightened judicial scrutiny in this case. * * * *\n\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 161\n\n\x0cB\nWe think it clear that the factual predicate offered in support of the Richmond Plan suffers from\nthe same two defects identified as fatal in Wygant. The District Court found the city council\xe2\x80\x99s\n\xe2\x80\x9cfindings sufficient to ensure that, in adopting the Plan, it was remedying the present effects of\npast discrimination in the construction industry.\xe2\x80\x9d Like the \xe2\x80\x9crole model\xe2\x80\x9d theory employed in Wygant,\na generalized assertion that there has been past discrimination in an entire industry provides no\nguidance for a legislative body to determine the precise scope of the injury it seeks to remedy.\nIt \xe2\x80\x9chas no logical stopping point.\xe2\x80\x9d Wygant (plurality opinion). \xe2\x80\x9cRelief\xe2\x80\x9d for such an ill-defined wrong\ncould extend until the percentage of public contracts awarded to MBE\xe2\x80\x99s in Richmond mirrored the\npercentage of minorities in the population as a whole. * * * *\nWhile there is no doubt that the sorry history of both private and public discrimination in this country\nhas contributed to a lack of opportunities for black entrepreneurs, this observation, standing alone,\ncannot justify a rigid racial quota in the awarding of public contracts in Richmond, Virginia. Like the\nclaim that discrimination in primary and secondary schooling justifies a rigid racial preference in\nmedical school admissions, an amorphous claim that there has been past discrimination in a particular\nindustry cannot justify the use of an unyielding racial quota.\nIt is sheer speculation how many minority firms there would be in Richmond absent past societal\ndiscrimination, just as it was sheer speculation how many minority medical students would have\nbeen admitted to the medical school at Davis absent past discrimination in educational opportunities.\nDefining these sorts of injuries as \xe2\x80\x9cidentified discrimination\xe2\x80\x9d would give local governments license to\ncreate a patchwork of racial preferences based on statistical generalizations about any particular field\nof endeavor. * * * *\nFinally, the city and the District Court relied on Congress\xe2\x80\x99 finding in connection with the set-aside\napproved in Fullilove that there had been nationwide discrimination in the construction industry.\nThe probative value of these findings for demonstrating the existence of discrimination in Richmond\nis extremely limited. By its inclusion of a waiver procedure in the national program addressed in\nFullilove, Congress explicitly recognized that the scope of the problem would vary from market area\nto market area. ***\nIn sum, none of the evidence presented by the city points to any identified discrimination in the\nRichmond construction industry. We, therefore, hold that the city has failed to demonstrate a\ncompelling interest in apportioning public contracting opportunities on the basis of race. To accept\nRichmond\xe2\x80\x99s claim that past societal discrimination alone can serve as the basis for rigid racial\npreferences would be to open the door to competing claims for \xe2\x80\x9cremedial relief\xe2\x80\x9d for every\ndisadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant\nto personal opportunity and achievement would be lost in a mosaic of shifting preferences based\non inherently unmeasurable claims of past wrongs. \xe2\x80\x9cCourts would be asked to evaluate the extent\nof the prejudice and consequent harm suffered by various minority groups. Those whose societal\ninjury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential\n\n162 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cclassifications . . . .\xe2\x80\x9d Bakke (Powell, J.). We think such a result would be contrary to both the letter and\nspirit of a constitutional provision whose central command is equality.\nThe foregoing analysis applies only to the inclusion of blacks within the Richmond set-aside program.\nThere is absolutely no evidence of past discrimination against Spanish-speaking, Oriental, Indian,\nEskimo, or Aleut persons in any aspect of the Richmond construction industry. The District Court took\njudicial notice of the fact that the vast majority of \xe2\x80\x9cminority\xe2\x80\x9d persons in Richmond were black. It may\nwell be that Richmond has never had an Aleut or Eskimo citizen. The random inclusion of racial groups\nthat, as a practical matter, may never have suffered from discrimination in the construction industry\nin Richmond suggests that perhaps the city\xe2\x80\x99s purpose was not in fact to remedy past discrimination.\nIf a 30% set-aside was \xe2\x80\x9cnarrowly tailored\xe2\x80\x9d to compensate black contractors for past discrimination,\none may legitimately ask why they are forced to share this \xe2\x80\x9cremedial relief\xe2\x80\x9d with an Aleut citizen who\nmoves to Richmond tomorrow? The gross overinclusiveness of Richmond\xe2\x80\x99s racial preference strongly\nimpugns the city\xe2\x80\x99s claim of remedial motivation.\n\nIV\nAs noted by the court below, it is almost impossible to assess whether the Richmond Plan is narrowly\ntailored to remedy prior discrimination since it is not linked to identified discrimination in any way.\nWe limit ourselves to two observations in this regard.\nFirst, there does not appear to have been any consideration of the use of race-neutral means to\nincrease minority business participation in city contracting. Many of the barriers to minority\nparticipation in the construction industry relied upon by the city to justify a racial classification\nappear to be race neutral. If MBE\xe2\x80\x99s disproportionately lack capital or cannot meet bonding\nrequirements, a race-neutral program of city financing for small firms would, a fortiori, lead to greater\nminority participation. The principal opinion in Fullilove found that Congress had carefully examined\nand rejected race-neutral alternatives before enacting the MBE set-aside. There is no evidence in this\nrecord that the Richmond City Council has considered any alternatives to a race-based quota.\nSecond, the 30% quota cannot be said to be narrowly tailored to any goal, except perhaps outright\nracial balancing. It rests upon the \xe2\x80\x9ccompletely unrealistic\xe2\x80\x9d assumption that minorities will choose a\nparticular trade in lockstep proportion to their representation in the local population.\nSince the city must already consider bids and waivers on a case-by-case basis, it is difficult to see\nthe need for a rigid numerical quota. As noted above, the congressional scheme upheld in Fullilove\nallowed for a waiver of the set-aside provision where an MBE\xe2\x80\x99s higher price was not attributable to\nthe effects of past discrimination. Based upon proper findings, such programs are less problematic\nfrom an equal protection standpoint because they treat all candidates individually, rather than making\nthe color of an applicant\xe2\x80\x99s skin the sole relevant consideration. Unlike the program upheld in Fullilove,\nthe Richmond Plan\xe2\x80\x99s waiver system focuses solely on the availability of MBE\xe2\x80\x99s; there is no inquiry into\nwhether or not the particular MBE seeking a racial preference has suffered from the effects of past\ndiscrimination by the city or prime contractors.\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 163\n\n\x0cGiven the existence of an individualized procedure, the city\xe2\x80\x99s only interest in maintaining a quota\nsystem rather than investigating the need for remedial action in particular cases would seem to be\nsimple administrative convenience. But the interest in avoiding the bureaucratic effort necessary to\ntailor remedial relief to those who truly have suffered the effects of prior discrimination cannot justify\na rigid line drawn on the basis of a suspect classification. Under Richmond\xe2\x80\x99s scheme, a successful\nblack, Hispanic, or Oriental entrepreneur from anywhere in the country enjoys an absolute preference\nover other citizens based solely on their race. We think it obvious that such a program is not narrowly\ntailored to remedy the effects of prior discrimination.\n\nV\nNothing we say today precludes a state or local entity from taking action to rectify the effects\nof identified discrimination within its jurisdiction. If the city of Richmond had evidence before it\nthat nonminority contractors were systematically excluding minority businesses from subcontracting\nopportunities, it could take action to end the discriminatory exclusion. Where there is a significant\nstatistical disparity between the number of qualified minority contractors willing and able to perform\na particular service and the number of such contractors actually engaged by the locality or the\nlocality\xe2\x80\x99s prime contractors, an inference of discriminatory exclusion could arise. Under such\ncircumstances, the city could act to dismantle the closed business system by taking appropriate\nmeasures against those who discriminate on the basis of race or other illegitimate criteria. In the\nextreme case, some form of narrowly tailored racial preference might be necessary to break down\npatterns of deliberate exclusion.\nNor is local government powerless to deal with individual instances of racially motivated refusals to\nemploy minority contractors. Where such discrimination occurs, a city would be justified in penalizing\nthe discriminator and providing appropriate relief to the victim of such discrimination. Moreover,\nevidence of a pattern of individual discriminatory acts can, if supported by appropriate statistical\nproof, lend support to a local government\xe2\x80\x99s determination that broader remedial relief is justified.\nEven in the absence of evidence of discrimination, the city has at its disposal a whole array of raceneutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs\nof all races. Simplification of bidding procedures, relaxation of bonding requirements, and training and\nfinancial aid for disadvantaged entrepreneurs of all races would open the public contracting market to\nall those who have suffered the effects of past societal discrimination or neglect. Many of the formal\nbarriers to new entrants may be the product of bureaucratic inertia more than actual necessity, and\nmay have a disproportionate effect on the opportunities open to new minority firms. Their elimination\nor modification would have little detrimental effect on the city\xe2\x80\x99s interests and would serve to increase\nthe opportunities available to minority business without classifying individuals on the basis of race.\nThe city may also act to prohibit discrimination in the provision of credit or bonding by local suppliers\nand banks. Business as usual should not mean business pursuant to the unthinking exclusion of certain\nmembers of our society from its rewards. * * * *\nBecause the city of Richmond has failed to identify the need for remedial action in the awarding of its\n164 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cpublic construction contracts, its treatment of its citizens on a racial basis violates the dictates of the\nEqual Protection Clause. Accordingly, the judgment of the Court of Appeals for the Fourth Circuit is\nAffirmed.\nJUSTICE KENNEDY, CONCURRING IN PART AND CONCURRING IN THE JUDGMENT {OMITTED}\nJUSTICE SCALIA, CONCURRING IN THE JUDGMENT {OMITTED}\nJUSTICE MARSHALL, WITH WHOM JUSTICE BRENNAN AND JUSTICE BLACKMUN JOIN, DISSENTING.\nIt is a welcome symbol of racial progress when the former capital of the Confederacy acts forthrightly\nto confront the effects of racial discrimination in its midst. In my view, nothing in the Constitution\ncan be construed to prevent Richmond, Virginia, from allocating a portion of its contracting dollars\nfor businesses owned or controlled by members of minority groups. ***\nA majority of this Court holds today, however, that the Equal Protection Clause of the Fourteenth\nAmendment blocks Richmond\xe2\x80\x99s initiative. The essence of the majority\xe2\x80\x99s position is that Richmond\nhas failed to catalog adequate findings to prove that past discrimination has impeded minorities\nfrom joining or participating fully in Richmond\xe2\x80\x99s construction contracting industry. I find deep irony\nin second-guessing Richmond\xe2\x80\x99s judgment on this point. As much as any municipality in the United\nStates, Richmond knows what racial discrimination is; a century of decisions by this and other federal\ncourts has richly documented the city\xe2\x80\x99s disgraceful history of public and private racial discrimination.\nIn any event, the Richmond City Council has supported its determination that minorities have been\nwrongly excluded from local construction contracting. Its proof includes statistics showing that\nminority-owned businesses have received virtually no city contracting dollars and rarely if ever\nbelonged to area trade associations; testimony by municipal officials that discrimination has been\nwidespread in the local construction industry; and the same exhaustive and widely publicized federal\nstudies relied on in Fullilove, studies which showed that pervasive discrimination in the Nation\xe2\x80\x99s tightknit construction industry had operated to exclude minorities from public contracting. These are\nprecisely the types of statistical and testimonial evidence which, until today, this Court had credited\nin cases approving of race-conscious measures designed to remedy past discrimination.\nMore fundamentally, today\xe2\x80\x99s decision marks a deliberate and giant step backward in this Court\xe2\x80\x99s\naffirmative-action jurisprudence. Cynical of one municipality\xe2\x80\x99s attempt to redress the effects of past\nracial discrimination in a particular industry, the majority launches a grapeshot attack on raceconscious remedies in general. The majority\xe2\x80\x99s unnecessary pronouncements will inevitably discourage\nor prevent governmental entities, particularly States and localities, from acting to rectify the scourge\nof past discrimination. This is the harsh reality of the majority\xe2\x80\x99s decision, but it is not the\nConstitution\xe2\x80\x99s command.\n\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 165\n\n\x0cI\nAs an initial matter, the majority takes an exceedingly myopic view of the factual predicate on which\nthe Richmond City Council relied when it passed the Minority Business Utilization Plan. The majority\nanalyzes Richmond\xe2\x80\x99s initiative as if it were based solely upon the facts about local construction and\ncontracting practices adduced during the city council session at which the measure was enacted. ***\nSo long as one views Richmond\xe2\x80\x99s local evidence of discrimination against the backdrop of systematic\nnationwide racial discrimination which Congress had so painstakingly identified in this very industry,\nthis case is readily resolved.\n\nII\n\xe2\x80\x9cAgreement upon a means for applying the Equal Protection Clause to an affirmative-action program\nhas eluded this Court every time the issue has come before us.\xe2\x80\x9d Wygant v. Jackson Bd. of Education\n(1986) (Marshall, J., dissenting). My view has long been that race-conscious classifications designed\nto further remedial goals \xe2\x80\x9cmust serve important governmental objectives and must be substantially\nrelated to achievement of those objectives\xe2\x80\x9d in order to withstand constitutional scrutiny. University\nof California Regents v. Bakke (1978) (joint opinion of Brennan, White, Marshall, and Blackmun, JJ.)\nAnalyzed in terms of this two-pronged standard, Richmond\xe2\x80\x99s set-aside, like the federal program on\nwhich it was modeled, is \xe2\x80\x9cplainly constitutional.\xe2\x80\x9d * * * * {analysis omitted}\n\nIII\nI would ordinarily end my analysis at this point and conclude that Richmond\xe2\x80\x99s ordinance satisfies both\nthe governmental interest and substantial relationship prongs of our Equal Protection Clause analysis.\nHowever, I am compelled to add more, for the majority has gone beyond the facts of this case to\nannounce a set of principles which unnecessarily restricts the power of governmental entities to take\nrace-conscious measures to redress the effects of prior discrimination.\n\nA\nToday, for the first time, a majority of this Court has adopted strict scrutiny as its standard of Equal\nProtection Clause review of race-conscious remedial measures. This is an unwelcome development.\nA profound difference separates governmental actions that themselves are racist, and governmental\nactions that seek to remedy the effects of prior racism or to prevent neutral governmental activity\nfrom perpetuating the effects of such racism.\nRacial classifications \xe2\x80\x9cdrawn on the presumption that one race is inferior to another or because they\nput the weight of government behind racial hatred and separatism\xe2\x80\x9d warrant the strictest judicial\nscrutiny because of the very irrelevance of these rationales. By contrast, racial classifications drawn\n166 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cfor the purpose of remedying the effects of discrimination that itself was race based have a highly\npertinent basis: the tragic and indelible fact that discrimination against blacks and other racial\nminorities in this Nation has pervaded our Nation\xe2\x80\x99s history and continues to scar our society. As I\nstated in Fullilove: \xe2\x80\x9cBecause the consideration of race is relevant to remedying the continuing effects\nof past racial discrimination, and because governmental programs employing racial classifications for\nremedial purposes can be crafted to avoid stigmatization, . . . such programs should not be subjected\nto conventional \xe2\x80\x98strict scrutiny\xe2\x80\x99 \xe2\x80\x93 scrutiny that is strict in theory, but fatal in fact.\xe2\x80\x9d\nIn concluding that remedial classifications warrant no different standard of review under the\nConstitution than the most brutal and repugnant forms of state-sponsored racism, a majority of this\nCourt signals that it regards racial discrimination as largely a phenomenon of the past, and that\ngovernment bodies need no longer preoccupy themselves with rectifying racial injustice. I, however,\ndo not believe this Nation is anywhere close to eradicating racial discrimination or its vestiges. In\nconstitutionalizing its wishful thinking, the majority today does a grave disservice not only to those\nvictims of past and present racial discrimination in this Nation whom government has sought to assist,\nbut also to this Court\xe2\x80\x99s long tradition of approaching issues of race with the utmost sensitivity.\n\nB\nI am also troubled by the majority\xe2\x80\x99s assertion that, even if it did not believe generally in strict scrutiny\nof race-based remedial measures, \xe2\x80\x9cthe circumstances of this case\xe2\x80\x9d require this Court to look upon\nthe Richmond City Council\xe2\x80\x99s measure with the strictest scrutiny. The sole such circumstance which\nthe majority cites, however, is the fact that blacks in Richmond are a \xe2\x80\x9cdominant racial grou[p]\xe2\x80\x9d in the\ncity. In support of this characterization of dominance, the majority observes that \xe2\x80\x9cblacks constitute\napproximately 50% of the population of the city of Richmond\xe2\x80\x9d and that \xe2\x80\x9c[f]ive of the nine seats on the\nCity Council are held by blacks.\xe2\x80\x9d\nWhile I agree that the numerical and political supremacy of a given racial group is a factor bearing\nupon the level of scrutiny to be applied, this Court has never held that numerical inferiority, standing\nalone, makes a racial group \xe2\x80\x9csuspect\xe2\x80\x9d and thus entitled to strict scrutiny review. * * * *\nIt cannot seriously be suggested that nonminorities in Richmond have any \xe2\x80\x9chistory of purposeful\nunequal treatment.\xe2\x80\x9d Nor is there any indication that they have any of the disabilities that have\ncharacteristically afflicted those groups this Court has deemed suspect. Indeed, the numerical and\npolitical dominance of nonminorities within the State of Virginia and the Nation as a whole provides\nan enormous political check against the \xe2\x80\x9csimple racial politics\xe2\x80\x9d at the municipal level which the\nmajority fears. * * * *\n* * * * Richmond\xe2\x80\x99s own recent political history underscores the facile nature of the majority\xe2\x80\x99s\nassumption that elected officials\xe2\x80\x99 voting decisions are based on the color of their skins. In recent\nyears, white and black councilmembers in Richmond have increasingly joined hands on controversial\nmatters. When the Richmond City Council elected a black man mayor in 1982, for example, his victory\nwas won with the support of the city council\xe2\x80\x99s four white members. The vote on the set-aside plan\na year later also was not purely along racial lines. Of the four white councilmembers, one voted\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 167\n\n\x0cfor the measure and another abstained. The majority\xe2\x80\x99s view that remedial measures undertaken by\nmunicipalities with black leadership must face a stiffer test of Equal Protection Clause scrutiny than\nremedial measures undertaken by municipalities with white leadership implies a lack of political\nmaturity on the part of this Nation\xe2\x80\x99s elected minority officials that is totally unwarranted. Such\ninsulting judgments have no place in constitutional jurisprudence.\n\nC\nToday\xe2\x80\x99s decision, finally, is particularly noteworthy for the daunting standard it imposes upon States\nand localities contemplating the use of race-conscious measures to eradicate the present effects of\nprior discrimination and prevent its perpetuation. * * * *\nIn short, there is simply no credible evidence that the Framers of the Fourteenth Amendment sought\n\xe2\x80\x9cto transfer the security and protection of all the civil rights . . . from the States to the Federal\ngovernment.\xe2\x80\x9d The Slaughter-House Cases, 16 Wall. 36, 77-78 (1873). The three Reconstruction\nAmendments undeniably \xe2\x80\x9cworked a dramatic change in the balance between congressional and state\npower\xe2\x80\x9d: they forbade state-sanctioned slavery, forbade the state-sanctioned denial of the right to\nvote, and (until the content of the Equal Protection Clause was substantially applied to the Federal\nGovernment through the Due Process Clause of the Fifth Amendment) uniquely forbade States to\ndeny equal protection. The Amendments also specifically empowered the Federal Government to\ncombat discrimination at a time when the breadth of federal power under the Constitution was\nless apparent than it is today. But nothing in the Amendments themselves, or in our long history\nof interpreting or applying those momentous charters, suggests that States, exercising their police\npower, are in any way constitutionally inhibited from working alongside the Federal Government in\nthe fight against discrimination and its effects.\n\nIV\nThe majority today sounds a full-scale retreat from the Court\xe2\x80\x99s longstanding solicitude to raceconscious remedial efforts \xe2\x80\x9cdirected toward deliverance of the century-old promise of equality of\neconomic opportunity.\xe2\x80\x9d Fullilove. The new and restrictive tests it applies scuttle one city\xe2\x80\x99s effort to\nsurmount its discriminatory past, and imperil those of dozens more localities. I, however, profoundly\ndisagree with the cramped vision of the Equal Protection Clause which the majority offers today and\nwith its application of that vision to Richmond, Virginia\xe2\x80\x99s, laudable set-aside plan. The battle against\npernicious racial discrimination or its effects is nowhere near won. I must dissent.\n\n168 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=35#h5p-64\n\nAdarand Constructors, Inc. v. Pe\xc3\xb1a\n515 U.S. 200 (1995)\nO\xe2\x80\x99CONNOR, J., ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN OPINION WITH RESPECT TO PARTS I, II,\nIII-A, III-B, III-D, AND IV, WHICH WAS FOR THE COURT EXCEPT INSOFAR AS IT MIGHT BE INCONSISTENT WITH THE\nVIEWS EXPRESSED IN THE CONCURRENCE OF SCALIA, J., AND AN OPINION WITH RESPECT TO PART III-C. PARTS I, II,\nIII-A, III-B, III-D, AND IV OF THAT OPINION WERE JOINED BY REHNQUIST, C. J., AND KENNEDY AND THOMAS, JJ., AND\nBY SCALIA, J., TO THE EXTENT HERETOFORE INDICATED; AND PART III-C WAS JOINED BY KENNEDY, J. SCALIA, J., AND\nTHOMAS, J., FILED OPINIONS CONCURRING IN PART AND CONCURRING IN THE JUDGMENT. STEVENS, J., FILED A\nDISSENTING OPINION, IN WHICH GINSBURG, J., JOINED. SOUTER, J., FILED A DISSENTING OPINION, IN WHICH GINSBURG\nAND BREYER, JJ., JOINED. GINSBURG, J., FILED A DISSENTING OPINION, IN WHICH BREYER, J., JOINED.\nJUSTICE O\xe2\x80\x99CONNOR ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN OPINION WITH RESPECT TO PARTS\nI, II, III-A, III-B, III-D, AND IV, WHICH IS FOR THE COURT EXCEPT INSOFAR AS IT MIGHT BE INCONSISTENT WITH THE\nVIEWS EXPRESSED IN JUSTICE SCALIA\xe2\x80\x99S CONCURRENCE, AND AN OPINION WITH RESPECT TO PART III-C IN WHICH JUSTICE\nKENNEDY JOINS.\nPetitioner Adarand Constructors, Inc., claims that the Federal Government\xe2\x80\x99s practice of giving general\ncontractors on government projects a financial incentive to hire subcontractors controlled by \xe2\x80\x9csocially\nand economically disadvantaged individuals,\xe2\x80\x9d and, in particular, the Government\xe2\x80\x99s use of race-based\npresumptions in identifying such individuals, violates the equal protection component of the Fifth\nAmendment\xe2\x80\x99s Due Process Clause. The Court of Appeals rejected Adarand\xe2\x80\x99s claim. We conclude,\nhowever, that courts should analyze cases of this kind under a different standard of review than the\none the Court of Appeals applied. We therefore vacate the Court of Appeals\xe2\x80\x99 judgment and remand the\ncase for further proceedings.\n\nI\nIn 1989, the Central Federal Lands Highway Division (CFLHD), which is part of the United States\nDepartment of Transportation (DOT), awarded the prime contract for a highway construction project\nin Colorado to Mountain Gravel & Construction Company. Mountain Gravel then solicited bids from\nsubcontractors for the guardrail portion of the contract. Adarand, a Colorado-based highway\n\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 169\n\n\x0cconstruction company specializing in guardrail work, submitted the low bid. Gonzales Construction\nCompany also submitted a bid.\nThe prime contract\xe2\x80\x99s terms provide that Mountain Gravel would receive additional compensation\nif it hired subcontractors certified as small businesses controlled by \xe2\x80\x9csocially and economically\ndisadvantaged individuals.\xe2\x80\x9d Gonzales is certified as such a business; Adarand is not. Mountain Gravel\nawarded the subcontract to Gonzales, despite Adarand\xe2\x80\x99s low bid, and Mountain Gravel\xe2\x80\x99s Chief\nEstimator has submitted an affidavit stating that Mountain Gravel would have accepted Adarand\xe2\x80\x99s\nbid had it not been for the additional payment it received by hiring Gonzales instead. Federal law\nrequires that a subcontracting clause similar to the one used here must appear in most federal agency\ncontracts, and it also requires the clause to state that\n[t]he contractor shall presume that socially and economically disadvantaged individuals\ninclude Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and\nother minorities, or any other individual found to be disadvantaged by the [Small Business]\nAdministration pursuant to section 8(a) of the Small Business Act.\n15 U.S.C. \xc2\xa7\xc2\xa7 637(d)(2), (3).\nAdarand claims that the presumption set forth in that statute discriminates on the basis of race\nin violation of the Federal Government\xe2\x80\x99s Fifth Amendment obligation not to deny anyone equal\nprotection of the laws.\nThese fairly straightforward facts implicate a complex scheme of federal statutes and regulations, to\nwhich we now turn. * * * * {discussion omitted}\nAfter losing the guardrail subcontract to Gonzales, Adarand filed suit against various federal officials\nin the United States District Court for the District of Colorado, claiming that the race-based\npresumptions involved in the use of subcontracting compensation clauses violate Adarand\xe2\x80\x99s right to\nequal protection. The District Court granted the Government\xe2\x80\x99s motion for summary judgment. The\nCourt of Appeals for the Tenth Circuit affirmed. It understood our decision in Fullilove v. Klutznick\n(1980), to have adopted \xe2\x80\x9ca lenient standard, resembling intermediate scrutiny, in assessing\xe2\x80\x9d the\nconstitutionality of federal race-based action. Applying that \xe2\x80\x9clenient standard,\xe2\x80\x9d as further developed\nin Metro Broadcasting, Inc. v. FCC (1990), the Court of Appeals upheld the use of subcontractor\ncompensation clauses. We granted certiorari.\n\nII\n{The Court found that Adarand had standing to challenge the government action}\n\nIII\nThe Government urges that \xe2\x80\x9c[t]he Subcontracting Compensation Clause program is . . . a program\n170 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cbased on disadvantage, not on race,\xe2\x80\x9d and thus that it is subject only to \xe2\x80\x9cthe most relaxed judicial\nscrutiny.\xe2\x80\x9d To the extent that the statutes and regulations involved in this case are race-neutral, we\nagree. The Government concedes, however, that \xe2\x80\x9cthe race-based rebuttable presumption used in\nsome certification determinations under the Subcontracting Compensation Clause\xe2\x80\x9d is subject to some\nheightened level of scrutiny. The parties disagree as to what that level should be. * * * *\nAdarand\xe2\x80\x99s claim arises under the Fifth Amendment to the Constitution, which provides that \xe2\x80\x9cNo\nperson shall . . . be deprived of life, liberty, or property, without due process of law.\xe2\x80\x9d Although this\nCourt has always understood that Clause to provide some measure of protection against arbitrary\ntreatment by the Federal Government, it is not as explicit a guarantee of equal treatment as the\nFourteenth Amendment, which provides that \xe2\x80\x9cNo State shall . . . deny to any person within its\njurisdiction the equal protection of the laws\xe2\x80\x9d (emphasis added). Our cases have accorded varying\ndegrees of significance to the difference in the language of those two Clauses. We think it necessary\nto revisit the issue here.\n\nA\n{discussion of equal protection under the Fifth Amendment omitted}\n\nB\nMost of the cases discussed above involved classifications burdening groups that have suffered\ndiscrimination in our society. In 1978, the Court confronted the question whether race-based\ngovernmental action designed to benefit such groups should also be subject to \xe2\x80\x9cthe most rigid\nscrutiny.\xe2\x80\x9d * * * *\nThe Court\xe2\x80\x99s failure to produce a majority opinion in Bakke, Fullilove, and Wygant left unresolved the\nproper analysis for remedial race-based governmental action. * * * *\nThe Court resolved the issue at least in part, in 1989. Richmond v. J. A. Croson Co. (1989), concerned a\ncity\xe2\x80\x99s determination that 30% of its contracting work should go to minority-owned businesses. * * * *\nWith Croson, the Court finally agreed that the Fourteenth Amendment requires strict scrutiny of\nall race-based action by state and local governments. But Croson of course had no occasion to\ndeclare what standard of review the Fifth Amendment requires for such action taken by the Federal\nGovernment. * * * *\nDespite lingering uncertainty in the details, however, the Court\xe2\x80\x99s cases through Croson had\nestablished three general propositions with respect to governmental racial classifications. First,\nskepticism: \xe2\x80\x9c\xe2\x80\x98[a]ny preference based on racial or ethnic criteria must necessarily receive a most\nsearching examination,\xe2\x80\x99\xe2\x80\x9d Wygant, 476 U.S. at 273 (plurality opinion of Powell, J.); Fullilove, 448 U.S.\nat 491 (opinion of Burger, C.J.); see also id. at 523 (Stewart, J., dissenting) (\xe2\x80\x9c[A]ny official action that\ntreats a person differently on account of his race or ethnic origin is inherently suspect\xe2\x80\x9d); McLaughlin,\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 171\n\n\x0c379 U.S. at 192 (\xe2\x80\x9c[R]acial classifications [are] \xe2\x80\x98constitutionally suspect\xe2\x80\x99\xe2\x80\x9d); Hirabayashi, 320 U.S. at 100\n(\xe2\x80\x9cDistinctions between citizens solely because of their ancestry are by their very nature odious to\na free people\xe2\x80\x9d). Second, consistency: \xe2\x80\x9cthe standard of review under the Equal Protection Clause is\nnot dependent on the race of those burdened or benefited by a particular classification,\xe2\x80\x9d Croson, 488\nU.S. at 494 (plurality opinion); id. at 520 (Scalia, J., concurring in judgment); see also Bakke, 438 U.S.\nat 289-290 (opinion of Powell, J.), i. e., all racial classifications reviewable under the Equal Protection\nClause must be strictly scrutinized. And third, congruence: \xe2\x80\x9c[e]qual protection analysis in the Fifth\nAmendment area is the same as that under the Fourteenth Amendment,\xe2\x80\x9d Buckley v. Valeo, 424 U.S.\nat 93; see also Weinberger v. Wiesenfeld, 420 U.S. at 638, n. 2; Bolling v. Sharpe, 347 U.S. at 500.\nTaken together, these three propositions lead to the conclusion that any person, of whatever race,\nhas the right to demand that any governmental actor subject to the Constitution justify any racial\nclassification subjecting that person to unequal treatment under the strictest judicial scrutiny. * * * *\nA year later {after Croson}, however, the Court took a surprising turn. Metro Broadcasting, Inc.\nv. FCC (1990), involved a Fifth Amendment challenge to two race-based policies of the Federal\nCommunications Commission. In Metro Broadcasting, the Court repudiated the long-held notion that\n\xe2\x80\x9cit would be unthinkable that the same Constitution would impose a lesser duty on the Federal\nGovernment\xe2\x80\x9d than it does on a State to afford equal protection of the laws, Bolling. It did so by\nholding that \xe2\x80\x9cbenign\xe2\x80\x9d federal racial classifications need only satisfy intermediate scrutiny, even though\nCroson had recently concluded that such classifications enacted by a State must satisfy strict scrutiny.\n\xe2\x80\x9c[B]enign\xe2\x80\x9d federal racial classifications, the Court said,\n\xe2\x80\x94even if those measures are not \xe2\x80\x9cremedial\xe2\x80\x9d in the sense of being designed to compensate\nvictims of past governmental or societal discrimination\xe2\x80\x94are constitutionally permissible to\nthe extent that they serve important governmental objectives within the power of Congress\nand are substantially related to achievement of those objectives.\nMetro Broadcasting. The Court did not explain how to tell whether a racial classification should be\ndeemed \xe2\x80\x9cbenign,\xe2\x80\x9d other than to express\nconfiden[ce] that an \xe2\x80\x9cexamination of the legislative scheme and its history\xe2\x80\x9d will separate\nbenign measures from other types of racial classifications.\nApplying this test, the Court first noted that the FCC policies at issue did not serve as a remedy\nfor past discrimination. Proceeding on the assumption that the policies were nonetheless \xe2\x80\x9cbenign,\xe2\x80\x9d it\nconcluded that they served the \xe2\x80\x9cimportant governmental objective\xe2\x80\x9d of \xe2\x80\x9cenhancing broadcast diversity,\xe2\x80\x9d\nand that they were \xe2\x80\x9csubstantially related\xe2\x80\x9d to that objective. It therefore upheld the policies. * * * *\nThe three propositions undermined by Metro Broadcasting all derive from the basic principle that the\nFifth and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that\nprinciple that all governmental action based on race \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x93 a group classification long recognized as\n\xe2\x80\x9cin most circumstances irrelevant and therefore prohibited,\xe2\x80\x9d Hirabayashi, \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x93 should be subjected to\ndetailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been\ninfringed. These ideas have long been central to this Court\xe2\x80\x99s understanding of equal protection, and\nholding \xe2\x80\x9cbenign\xe2\x80\x9d state and federal racial classifications to different standards does not square with\n172 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cthem. \xe2\x80\x9c[A] free people whose institutions are founded upon the doctrine of equality,\xe2\x80\x9d should tolerate\nno retreat from the principle that government may treat people differently because of their race only\nfor the most compelling reasons. Accordingly, we hold today that all racial classifications, imposed\nby whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under\nstrict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored\nmeasures that further compelling governmental interests. To the extent that Metro Broadcasting is\ninconsistent with that holding, it is overruled.\n\nC\n{discussion of stare decisis omitted}\n\nD\nFinally, we wish to dispel the notion that strict scrutiny is \xe2\x80\x9cstrict in theory, but fatal in fact.\xe2\x80\x9d Fullilove\n(Marshall, J., concurring in judgment). The unhappy persistence of both the practice and the lingering\neffects of racial discrimination against minority groups in this country is an unfortunate reality,\nand government is not disqualified from acting in response to it. * * * * When race-based action\nis necessary to further a compelling interest, such action is within constitutional constraints if it\nsatisfies the \xe2\x80\x9cnarrow tailoring\xe2\x80\x9d test this Court has set out in previous cases.\n\nIV\nBecause our decision today alters the playing field in some important respects, we think it best to\nremand the case to the lower courts for further consideration in light of the principles we have\nannounced. * * * *\nThe question whether any of the ways in which the Government uses subcontractor compensation\nclauses can survive strict scrutiny, and any relevance distinctions such as these may have to that\nquestion, should be addressed in the first instance by the lower courts.\nAccordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further\nproceedings consistent with this opinion.\nIt is so ordered.\nJUSTICE SCALIA, CONCURRING IN PART AND CONCURRING IN THE JUDGMENT.\nI join the opinion of the Court, except Part III-C, and except insofar as it may be inconsistent with\nthe following: in my view, government can never have a \xe2\x80\x9ccompelling interest\xe2\x80\x9d in discriminating on\nthe basis of race in order to \xe2\x80\x9cmake up\xe2\x80\x9d for past racial discrimination in the opposite direction. See\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 173\n\n\x0cRichmond v. J. A. Croson Co. (1989) (Scalia, J., concurring in judgment). Individuals who have been\nwronged by unlawful racial discrimination should be made whole, but, under our Constitution, there\ncan be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution\xe2\x80\x99s\nfocus upon the individual, see Amdt. 14, \xc2\xa7 1 (\xe2\x80\x9c[N]or shall any State . . . deny to any person\xe2\x80\x9d the equal\nprotection of the laws) (emphasis added), and its rejection of dispositions based on race, see Amdt.\n15, \xc2\xa7 1 (prohibiting abridgment of the right to vote \xe2\x80\x9con account of race\xe2\x80\x9d) or based on blood, see Art.\nIII, \xc2\xa7 3 (\xe2\x80\x9c[N]o Attainder of Treason shall work Corruption of Blood\xe2\x80\x9d); Art. I, \xc2\xa7 9 (\xe2\x80\x9cNo Title of Nobility\nshall be granted by the United States\xe2\x80\x9d). To pursue the concept of racial entitlement\xe2\x80\x94even for the most\nadmirable and benign of purposes\xe2\x80\x94is to reinforce and preserve for future mischief the way of thinking\nthat produced race slavery, race privilege and race hatred. In the eyes of government, we are just one\nrace here. It is American.\nIt is unlikely, if not impossible, that the challenged program would survive under this would survive\nunder this understanding of strict scrutiny, but I am content to leave that to be decided on remand.\nJUSTICE THOMAS, CONCURRING IN PART AND CONCURRING IN THE JUDGMENT.\nI agree with the majority\xe2\x80\x99s conclusion that strict scrutiny applies to all government classifications\nbased on race. I write separately, however, to express my disagreement with the premise underlying\nJustice Stevens\xe2\x80\x99 and Justice Ginsburg\xe2\x80\x99s dissents: that there is a racial paternalism exception to the\nprinciple of equal protection* * * * Government cannot make us equal; it can only recognize, respect,\nand protect us as equal before the law.\nThat these programs may have been motivated, in part, by good intentions cannot provide refuge\nfrom the principle that under our Constitution, the government may not make distinctions on the\nbasis of race. As far as the Constitution is concerned, it is irrelevant whether a government\xe2\x80\x99s racial\nclassifications are drawn by those who wish to oppress a race or by those who have a sincere desire\nto help those thought to be disadvantaged. There can be no doubt that the paternalism that appears\nto lie at the heart of this program is at war with the principle of inherent equality that underlies and\ninfuses our Constitution. See Declaration of Independence (\xe2\x80\x9cWe hold these truths to be self-evident,\nthat all men are created equal, that they are endowed by their Creator with certain unalienable Rights,\nthat among these are Life, Liberty, and the pursuit of Happiness\xe2\x80\x9d).\nThese programs not only raise grave constitutional questions, they also undermine the moral basis\nof the equal protection principle. Purchased at the price of immeasurable human suffering, the\nequal protection principle reflects our Nation\xe2\x80\x99s understanding that such classifications ultimately\nhave a destructive impact on the individual and our society. Unquestionably, \xe2\x80\x9c[i]nvidious [racial]\ndiscrimination is an engine of oppression,\xe2\x80\x9d {Justice Stevens\xe2\x80\x99 dissent}. It is also true that \xe2\x80\x9c[r]emedial\xe2\x80\x9d\nracial preferences may reflect \xe2\x80\x9ca desire to foster equality in society.\xe2\x80\x9d But there can be no doubt\nthat racial paternalism and its unintended consequences can be as poisonous and pernicious as\nany other form of discrimination. So-called \xe2\x80\x9cbenign\xe2\x80\x9d discrimination teaches many that because of\nchronic and apparently immutable handicaps, minorities cannot compete with them without their\npatronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively,\nprovoke resentment among those who believe that they have been wronged by the government\xe2\x80\x99s use\n174 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cof race. These programs stamp minorities with a badge of inferiority and may cause them to develop\ndependencies or to adopt an attitude that they are \xe2\x80\x9centitled\xe2\x80\x9d to preferences. * * * *\nIn my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious\nas discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and\nsimple.\nJUSTICE STEVENS, WITH WHOM JUSTICE GINSBURG JOINS, DISSENTING.\nInstead of deciding this case in accordance with controlling precedent, the Court today delivers a\ndisconcerting lecture about the evils of governmental racial classifications. For its text, the Court\nhas selected three propositions, represented by the bywords \xe2\x80\x9cskepticism,\xe2\x80\x9d \xe2\x80\x9cconsistency,\xe2\x80\x9d and\n\xe2\x80\x9ccongruence.\xe2\x80\x9d I shall comment on each of these propositions, then add a few words about stare decisis,\nand finally explain why I believe this Court has a duty to affirm the judgment of the Court of Appeals.\n\nI\nThe Court\xe2\x80\x99s concept of skepticism is, at least in principle, a good statement of law and of common\nsense. Undoubtedly, a court should be wary of a governmental decision that relies upon a racial\nclassification.\n* * * * In my judgment, because uniform standards are often anything but uniform, we should evaluate\nthe Court\xe2\x80\x99s comments on \xe2\x80\x9cconsistency,\xe2\x80\x9d \xe2\x80\x9ccongruence,\xe2\x80\x9d and stare decisis with the same type of\nskepticism that the Court advocates for the underlying issue.\n\nII\nThe Court\xe2\x80\x99s concept of \xe2\x80\x9cconsistency\xe2\x80\x9d assumes that there is no significant difference between a\ndecision by the majority to impose a special burden on the members of a minority race and a decision\nby the majority to provide a benefit to certain members of that minority notwithstanding its incidental\nburden on some members of the majority. In my opinion that assumption is untenable. There is\nno moral or constitutional equivalence between a policy that is designed to perpetuate a caste\nsystem and one that seeks to eradicate racial subordination. Invidious discrimination is an engine\nof oppression, subjugating a disfavored group to enhance or maintain the power of the majority.\nRemedial race-based preferences reflect the opposite impulse: a desire to foster equality in society.\n****\nThe consistency that the Court espouses would disregard the difference between a \xe2\x80\x9cNo Trespassing\xe2\x80\x9d\nsign and a welcome mat. It would treat a Dixiecrat Senator\xe2\x80\x99s decision to vote against Thurgood\nMarshall\xe2\x80\x99s confirmation in order to keep African Americans off the Supreme Court as on a par with\nPresident Johnson\xe2\x80\x99s evaluation of his nominee\xe2\x80\x99s race as a positive factor. It would equate a law that\nmade black citizens ineligible for military service with a program aimed at recruiting black soldiers.\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 175\n\n\x0cAn attempt by the majority to exclude members of a minority race from a regulated market is\nfundamentally different from a subsidy that enables a relatively small group of newcomers to enter\nthat market. An interest in \xe2\x80\x9cconsistency\xe2\x80\x9d does not justify treating differences as though they were\nsimilarities.\nThe Court\xe2\x80\x99s explanation for treating dissimilar race-based decisions as though they were equally\nobjectionable is a supposed inability to differentiate between \xe2\x80\x9cinvidious\xe2\x80\x9d and \xe2\x80\x9cbenign\xe2\x80\x9d discrimination.\nBut the term \xe2\x80\x9caffirmative action\xe2\x80\x9d is common and well understood. Its presence in everyday parlance\nshows that people understand the difference between good intentions and bad. As with any legal\nconcept, some cases may be difficult to classify * * * *\nMoreover, the Court may find that its new \xe2\x80\x9cconsistency\xe2\x80\x9d approach to race-based classifications is\ndifficult to square with its insistence upon rigidly separate categories for discrimination against\ndifferent classes of individuals. For example, as the law currently stands, the Court will apply\n\xe2\x80\x9cintermediate scrutiny\xe2\x80\x9d to cases of invidious gender discrimination and \xe2\x80\x9cstrict scrutiny\xe2\x80\x9d to cases\nof invidious race discrimination, while applying the same standard for benign classifications as for\ninvidious ones. If this remains the law, then today\xe2\x80\x99s lecture about \xe2\x80\x9cconsistency\xe2\x80\x9d will produce the\nanomalous result that the Government can more easily enact affirmative action programs to remedy\ndiscrimination against women than it can enact affirmative action programs to remedy discrimination\nagainst African Americans-even though the primary purpose of the Equal Protection Clause was\nto end discrimination against the former slaves. When a court becomes preoccupied with abstract\nstandards, it risks sacrificing common sense at the altar of formal consistency.\nAs a matter of constitutional and democratic principle, a decision by representatives of the majority\nto discriminate against the members of a minority race is fundamentally different from those same\nrepresentatives\xe2\x80\x99 decision to impose incidental costs on the majority of their constituents in order\nto provide a benefit to a disadvantaged minority. Indeed, as I have previously argued, the former is\nvirtually always repugnant to the principles of a free and democratic society, whereas the latter is,\nin some circumstances, entirely consistent with the ideal of equality. Wygant v. Jackson Board of Ed.\n(1986) (Stevens, J., dissenting). By insisting on a doctrinaire notion of \xe2\x80\x9cconsistency\xe2\x80\x9d in the standard\napplicable to all race-based governmental actions, the Court obscures this essential dichotomy.\n\nIII\nThe Court\xe2\x80\x99s concept of \xe2\x80\x9ccongruence\xe2\x80\x9d assumes that there is no significant difference between a\ndecision by the Congress of the United States to adopt an affirmative action program and such a\ndecision by a State or a municipality. In my opinion, that assumption is untenable. It ignores important\npractical and legal differences between federal and state or local decisionmakers.\nThese differences have been identified repeatedly and consistently both in opinions of the Court and\nin separate opinions authored by members of today\xe2\x80\x99s majority. Thus, in Metro Broadcasting, Inc. v. FCC\n(1990), in which we upheld a federal program designed to foster racial diversity in broadcasting, we\nidentified the special \xe2\x80\x9cinstitutional competence\xe2\x80\x9d of our National Legislature. * * * *\n\n176 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cWhat the record shows, in other words, is that racial discrimination against any group finds a more\nready expression at the state and local than at the federal level. To the children of the Founding\nFathers, this should come as no surprise. An acute awareness of the heightened danger of oppression\nfrom political factions in small, rather than large, political units dates to the very beginning of our\nnational history. See G. Wood, The Creation of the American Republic, 1776-1787 (1969). * * * *\nIn my judgment, the Court\xe2\x80\x99s novel doctrine of \xe2\x80\x9ccongruence\xe2\x80\x9d is seriously misguided. Congressional\ndeliberations about a matter as important as affirmative action should be accorded far greater\ndeference than those of a State or municipality.\n\nIV\nThe Court\xe2\x80\x99s concept of stare decisis treats some of the language we have used in explaining our\ndecisions as though it were more important than our actual holdings. In my opinion, that treatment is\nincorrect.\nThis is the third time in the Court\xe2\x80\x99s entire history that it has considered the constitutionality of a\nfederal affirmative action program. On each of the two prior occasions, the first in 1980, Fullilove v.\nKlutznick, and the second in 1990, Metro Broadcasting, Inc. v. FCC, the Court upheld the program.\nToday the Court explicitly overrules Metro Broadcasting (at least in part), and undermines Fullilove\nby recasting the standard on which it rested and by calling even its holding into question. By way\nof explanation, Justice O\xe2\x80\x99Connor advises the federal agencies and private parties that have made\ncountless decisions in reliance on those cases that \xe2\x80\x9cwe do not depart from the fabric of the law; we\nrestore it.\xe2\x80\x9d A skeptical observer might ask whether this pronouncement is a faithful application of the\ndoctrine of stare decisis.\n****\n\nV\n{discussion of Fullilove omitted}\n\nVI\nMy skeptical scrutiny of the Court\xe2\x80\x99s opinion leaves me in dissent. The majority\xe2\x80\x99s concept of\n\xe2\x80\x9cconsistency\xe2\x80\x9d ignores a difference, fundamental to the idea of equal protection, between oppression\nand assistance. The majority\xe2\x80\x99s concept of \xe2\x80\x9ccongruence\xe2\x80\x9d ignores a difference, fundamental to our\nconstitutional system, between the Federal Government and the States. And the majority\xe2\x80\x99s concept\nof stare decisis ignores the force of binding precedent. I would affirm the judgment of the Court of\nAppeals.\n\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 177\n\n\x0cCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=35#h5p-65\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=35#h5p-66\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=35#h5p-67\n\nNotes\n1. Consider O\xe2\x80\x99Connor\xe2\x80\x99s three principles in Adarand. Are they doctrine, theoretical perspective, or\nsomething else? Are they supported by the citations?\n2. Be prepared to discuss dissenting Justice Stevens\xe2\x80\x99 reference to \xe2\x80\x9cthe anomalous result\xe2\x80\x9d regarding the\napplication of the consistency principle.\n3. Be prepared to articulate the standard of \xe2\x80\x9cintermediate scrutiny.\xe2\x80\x9d While the Court in Adarand rejects\nthis as the standard for \xe2\x80\x9caffirmative action\xe2\x80\x9d racial classifications, note that this is the standard that is\napplicable to sex/gender classifications as decided by the Court in Craig v. Boren, 429 U.S. 190 (1976),\ndiscussed in a later chapter.\n\nB. Diversity and Education\n\nGrutter v. Bollinger\n539 U.S. 306 (2003)\nO\xe2\x80\x99CONNOR, J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEVENS, SOUTER, GINSBURG, AND BREYER, JJ.,\nJOINED, AND IN WHICH SCALIA AND THOMAS, JJ., JOINED IN PART INSOFAR AS IT IS CONSISTENT WITH THE VIEWS\n178 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cEXPRESSED IN PART VII OF THE OPINION OF THOMAS, J. GINSBURG, J., FILED A CONCURRING OPINION, IN WHICH\nBREYER, J., JOINED. SCALIA, J., FILED AN OPINION CONCURRING IN PART AND DISSENTING IN PART, IN WHICH THOMAS, J.,\nJOINED. THOMAS, J., FILED AN OPINION CONCURRING IN PART AND DISSENTING IN PART, IN WHICH SCALIA, J., JOINED AS\nTO PARTS I\xe2\x80\x94VII. REHNQUIST, C. J., FILED A DISSENTING OPINION, IN WHICH SCALIA, KENNEDY, AND THOMAS, JJ.,\nJOINED. KENNEDY, J., FILED A DISSENTING OPINION.\n\nJUSTICE O\xe2\x80\x99CONNOR DELIVERED THE OPINION OF THE COURT.\nThis case requires us to decide whether the use of race as a factor in student admissions by the\nUniversity of Michigan Law School (Law School) is unlawful.\n\nI\nA\nThe Law School ranks among the Nation\xe2\x80\x99s top law schools. It receives more than 3,500 applications\neach year for a class of around 350 students. Seeking to \xe2\x80\x9cadmit a group of students who individually\nand collectively are among the most capable,\xe2\x80\x9d the Law School looks for individuals with \xe2\x80\x9csubstantial\npromise for success in law school\xe2\x80\x9d and \xe2\x80\x9ca strong likelihood of succeeding in the practice of law and\ncontributing in diverse ways to the well-being of others.\xe2\x80\x9d More broadly, the Law School seeks \xe2\x80\x9ca mix\nof students with varying backgrounds and experiences who will respect and learn from each other.\xe2\x80\x9d\nIn 1992, the dean of the Law School charged a faculty committee with crafting a written admissions\npolicy to implement these goals. In particular, the Law School sought to ensure that its efforts to\nachieve student body diversity complied with this Court\xe2\x80\x99s most recent ruling on the use of race in\nuniversity admissions. See Bakke (1978). Upon the unanimous adoption of the committee\xe2\x80\x99s report by\nthe Law School faculty, it became the Law School\xe2\x80\x99s official admissions policy.\nThe hallmark of that policy is its focus on academic ability coupled with a flexible assessment of\napplicants\xe2\x80\x99 talents, experiences, and potential \xe2\x80\x9cto contribute to the learning of those around them.\xe2\x80\x9d\nThe policy requires admissions officials to evaluate each applicant based on all the information\navailable in the file, including a personal statement, letters of recommendation, and an essay\ndescribing the ways in which the applicant will contribute to the life and diversity of the Law School.\nIn reviewing an applicant\xe2\x80\x99s file, admissions officials must consider the applicant\xe2\x80\x99s undergraduate grade\npoint average (GPA) and Law School Admissions Test (LSAT) score because they are important (if\nimperfect) predictors of academic success in law school. The policy stresses that \xe2\x80\x9cno applicant should\nbe admitted unless we expect that applicant to do well enough to graduate with no serious academic\nproblems.\xe2\x80\x9d\nThe policy makes clear, however, that even the highest possible score does not guarantee admission\nto the Law School. Nor does a low score automatically disqualify an applicant. Rather, the policy\nrequires admissions officials to look beyond grades and test scores to other criteria that are important\nto the Law School\xe2\x80\x99s educational objectives. So-called \xe2\x80\x9csoft\xe2\x80\x99 variables\xe2\x80\x9d such as \xe2\x80\x9cthe enthusiasm of\nrecommenders, the quality of the undergraduate institution, the quality of the applicant\xe2\x80\x99s essay, and\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 179\n\n\x0cthe areas and difficulty of undergraduate course selection\xe2\x80\x9d are all brought to bear in assessing an\n\xe2\x80\x9capplicant\xe2\x80\x99s likely contributions to the intellectual and social life of the institution.\xe2\x80\x9d\nThe policy aspires to \xe2\x80\x9cachieve that diversity which has the potential to enrich everyone\xe2\x80\x99s education\nand thus make a law school class stronger than the sum of its parts.\xe2\x80\x9d The policy does not restrict the\ntypes of diversity contributions eligible for \xe2\x80\x9csubstantial weight\xe2\x80\x9d in the admissions process, but instead\nrecognizes \xe2\x80\x9cmany possible bases for diversity admissions.\xe2\x80\x9d The policy does, however, reaffirm the\nLaw School\xe2\x80\x99s longstanding commitment to \xe2\x80\x9cone particular type of diversity,\xe2\x80\x9d that is, \xe2\x80\x9cracial and ethnic\ndiversity with special reference to the inclusion of students from groups which have been historically\ndiscriminated against, like African-Americans, Hispanics and Native Americans, who without this\ncommitment might not be represented in our student body in meaningful numbers.\xe2\x80\x9d By enrolling\na \xe2\x80\x9c \xe2\x80\x98critical mass\xe2\x80\x99 of [underrepresented] minority students,\xe2\x80\x9d the Law School seeks to \xe2\x80\x9censur[e] their\nability to make unique contributions to the character of the Law School.\xe2\x80\x9d\nThe policy does not define diversity \xe2\x80\x9csolely in terms of racial and ethnic status.\xe2\x80\x9d Nor is the policy\n\xe2\x80\x9cinsensitive to the competition among all students for admission to the [L]aw [S]chool.\xe2\x80\x9d Rather,\nthe policy seeks to guide admissions officers in \xe2\x80\x9cproducing classes both diverse and academically\noutstanding, classes made up of students who promise to continue the tradition of outstanding\ncontribution by Michigan Graduates to the legal profession.\xe2\x80\x9d\n\nB\nPetitioner Barbara Grutter is a white Michigan resident who applied to the Law School in 1996 with\na 3.8 grade point average and 161 LSAT score. The Law School initially placed petitioner on a waiting\nlist, but subsequently rejected her application. In December 1997, petitioner filed suit in the United\nStates District Court for the Eastern District of Michigan against the Law School, the Regents of\nthe University of Michigan, Lee Bollinger (Dean of the Law School from 1987 to 1994, and President\nof the University of Michigan from 1996 to 2002), Jeffrey Lehman (Dean of the Law School), and\nDennis Shields (Director of Admissions at the Law School from 1991 until 1998). Petitioner alleged that\nrespondents discriminated against her on the basis of race in violation of the Fourteenth Amendment\n* * * *{as well Title VI of the Civil Rights Act of 1964}.\nPetitioner further alleged that her application was rejected because the Law School uses race as a\n\xe2\x80\x9cpredominant\xe2\x80\x9d factor, giving applicants who belong to certain minority groups \xe2\x80\x9ca significantly greater\nchance of admission than students with similar credentials from disfavored racial groups.\xe2\x80\x9d Petitioner\nalso alleged that respondents \xe2\x80\x9chad no compelling interest to justify their use of race in the admissions\nprocess.\xe2\x80\x9d * * * *\nDuring the 15-day bench trial, the parties introduced extensive evidence concerning the Law School\xe2\x80\x99s\nuse of race in the admissions process. Dennis Shields, Director of Admissions when petitioner applied\nto the Law School, testified that he did not direct his staff to admit a particular percentage or number\nof minority students, but rather to consider an applicant\xe2\x80\x99s race along with all other factors. Shields\ntestified that at the height of the admissions season, he would frequently consult the so-called \xe2\x80\x9cdaily\nreports\xe2\x80\x9d that kept track of the racial and ethnic composition of the class (along with other information\n180 | Liberty, Equality, and Due Process: Third Edition\n\n\x0csuch as residency status and gender). This was done, Shields testified, to ensure that a critical mass\nof underrepresented minority students would be reached so as to realize the educational benefits of a\ndiverse student body. Shields stressed, however, that he did not seek to admit any particular number\nor percentage of underrepresented minority students.\nErica Munzel, who succeeded Shields as Director of Admissions, testified that \xe2\x80\x9c \xe2\x80\x98critical mass\xe2\x80\x99 \xe2\x80\x9d means\n\xe2\x80\x9c \xe2\x80\x98meaningful numbers\xe2\x80\x99 \xe2\x80\x9d or \xe2\x80\x9c \xe2\x80\x98meaningful representation,\xe2\x80\x99 \xe2\x80\x9d which she understood to mean a number\nthat encourages underrepresented minority students to participate in the classroom and not feel\nisolated. Munzel stated there is no number, percentage, or range of numbers or percentages that\nconstitute critical mass. Munzel also asserted that she must consider the race of applicants because\na critical mass of underrepresented minority students could not be enrolled if admissions decisions\nwere based primarily on undergraduate GPAs and LSAT scores.\nThe current Dean of the Law School, Jeffrey Lehman, also testified. Like the other Law School\nwitnesses, Lehman did not quantify critical mass in terms of numbers or percentages. He indicated\nthat critical mass means numbers such that underrepresented minority students do not feel isolated\nor like spokespersons for their race. When asked about the extent to which race is considered in\nadmissions, Lehman testified that it varies from one applicant to another. In some cases, according to\nLehman\xe2\x80\x99s testimony, an applicant\xe2\x80\x99s race may play no role, while in others it may be a \xe2\x80\x9c \xe2\x80\x98determinative\xe2\x80\x99 \xe2\x80\x9d\nfactor.\nThe District Court heard extensive testimony from Professor Richard Lempert, who chaired the\nfaculty committee that drafted the 1992 policy. Lempert emphasized that the Law School seeks\nstudents with diverse interests and backgrounds to enhance classroom discussion and the\neducational experience both inside and outside the classroom. When asked about the policy\xe2\x80\x99s\n\xe2\x80\x9c \xe2\x80\x98commitment to racial and ethnic diversity with special reference to the inclusion of students from\ngroups which have been historically discriminated against,\xe2\x80\x99 \xe2\x80\x9d Lempert explained that this language\ndid not purport to remedy past discrimination, but rather to include students who may bring to the\nLaw School a perspective different from that of members of groups which have not been the victims\nof such discrimination. Lempert acknowledged that other groups, such as Asians and Jews, have\nexperienced discrimination, but explained they were not mentioned in the policy because individuals\nwho are members of those groups were already being admitted to the Law School in significant\nnumbers.\nKent Syverud was the final witness to testify about the Law School\xe2\x80\x99s use of race in admissions\ndecisions. Syverud was a professor at the Law School when the 1992 admissions policy was adopted\nand is now Dean of Vanderbilt Law School. In addition to his testimony at trial, Syverud submitted\nseveral expert reports on the educational benefits of diversity. Syverud\xe2\x80\x99s testimony indicated that\nwhen a critical mass of underrepresented minority students is present, racial stereotypes lose their\nforce because nonminority students learn there is no \xe2\x80\x9c \xe2\x80\x98minority viewpoint\xe2\x80\x99 \xe2\x80\x9d but rather a variety of\nviewpoints among minority students.\nIn an attempt to quantify the extent to which the Law School actually considers race in making\nadmissions decisions, the parties introduced voluminous evidence at trial. Relying on data obtained\nfrom the Law School, petitioner\xe2\x80\x99s expert, Dr. Kinley Larntz, generated and analyzed \xe2\x80\x9cadmissions\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 181\n\n\x0cgrids\xe2\x80\x9d for the years in question (1995\xe2\x80\x942000). These grids show the number of applicants and the\nnumber of admittees for all combinations of GPAs and LSAT scores. Dr. Larntz made \xe2\x80\x9c \xe2\x80\x98cell-by-cell\xe2\x80\x99 \xe2\x80\x9d\ncomparisons between applicants of different races to determine whether a statistically significant\nrelationship existed between race and admission rates. He concluded that membership in certain\nminority groups \xe2\x80\x9c \xe2\x80\x98is an extremely strong factor in the decision for acceptance,\xe2\x80\x99 \xe2\x80\x9d and that applicants\nfrom these minority groups \xe2\x80\x9c \xe2\x80\x98are given an extremely large allowance for admission\xe2\x80\x99 \xe2\x80\x9d as compared to\napplicants who are members of nonfavored groups. Dr. Larntz conceded, however, that race is not the\npredominant factor in the Law School\xe2\x80\x99s admissions calculus.\nDr. Stephen Raudenbush, the Law School\xe2\x80\x99s expert, focused on the predicted effect of eliminating race\nas a factor in the Law School\xe2\x80\x99s admission process. In Dr. Raudenbush\xe2\x80\x99s view, a race-blind admissions\nsystem would have a \xe2\x80\x9c \xe2\x80\x98very dramatic,\xe2\x80\x99 \xe2\x80\x9d negative effect on underrepresented minority admissions.\nHe testified that in 2000, 35 percent of underrepresented minority applicants were admitted. Dr.\nRaudenbush predicted that if race were not considered, only 10 percent of those applicants would\nhave been admitted. Under this scenario, underrepresented minority students would have comprised\n4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent.\nIn the end, the District Court concluded that the Law School\xe2\x80\x99s use of race as a factor in admissions\ndecisions was unlawful. Applying strict scrutiny, the District Court determined that the Law School\xe2\x80\x99s\nasserted interest in assembling a diverse student body was not compelling because \xe2\x80\x9cthe attainment\nof a racially diverse class \xe2\x80\xa6 was not recognized as such by Bakke and is not a remedy for past\ndiscrimination.\xe2\x80\x9d The District Court went on to hold that even if diversity were compelling, the Law\nSchool had not narrowly tailored its use of race to further that interest. The District Court granted\npetitioner\xe2\x80\x99s request for declaratory relief and enjoined the Law School from using race as a factor in\nits admissions decisions. The Court of Appeals entered a stay of the injunction pending appeal.\nSitting en banc, the Court of Appeals reversed the District Court\xe2\x80\x99s judgment and vacated the\ninjunction. The Court of Appeals first held that Justice Powell\xe2\x80\x99s opinion in Bakke was binding\nprecedent establishing diversity as a compelling state interest. * * * *The Court of Appeals also held\nthat the Law School\xe2\x80\x99s use of race was narrowly tailored because race was merely a \xe2\x80\x9cpotential \xe2\x80\x98plus\xe2\x80\x99\nfactor\xe2\x80\x9d and because the Law School\xe2\x80\x99s program was \xe2\x80\x9cvirtually identical\xe2\x80\x9d to the Harvard admissions\nprogram described approvingly by Justice Powell and appended to his Bakke opinion. * * * *\nWe granted certiorari, to resolve the disagreement among the Courts of Appeals on a question of\nnational importance: Whether diversity is a compelling interest that can justify the narrowly tailored\nuse of race in selecting applicants for admission to public universities. Compare Hopwood v. Texas\nth\n\n(5\n\nCir. 1996) (Hopwood I) (holding that diversity is not a compelling state interest), with Smith v.\nth\n\nUniversity of Wash. Law School (9\n\nCir. 2000) (holding that it is).\n\n182 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cII\nA\nWe last addressed the use of race in public higher education over 25 years ago. In the landmark Bakke\ncase, we reviewed a racial set-aside program that reserved 16 out of 100 seats in a medical school class\nfor members of certain minority groups. The decision produced six separate opinions, none of which\ncommanded a majority of the Court. * * * *\nIn the wake of our fractured decision in Bakke, courts have struggled to discern whether Justice\nPowell\xe2\x80\x99s diversity rationale, set forth in part of the opinion joined by no other Justice, is nonetheless\nbinding precedent. * * * *\n[T]oday we endorse Justice Powell\xe2\x80\x99s view that student body diversity is a compelling state interest that\ncan justify the use of race in university admissions.\n\nB\nThe Equal Protection Clause provides that no State shall \xe2\x80\x9cdeny to any person within its jurisdiction the\nequal protection of the laws.\xe2\x80\x9d Because the Fourteenth Amendment \xe2\x80\x9cprotect[s] persons, not groups,\xe2\x80\x9d all\n\xe2\x80\x9cgovernmental action based on race\xe2\x80\x93a group classification long recognized as in most circumstances\nirrelevant and therefore prohibited\xe2\x80\x93should be subjected to detailed judicial inquiry to ensure that\nthe personal right to equal protection of the laws has not been infringed.\xe2\x80\x9d Adarand Constructors, Inc.\nv. Pe\xc3\xb1a (1995). We are a \xe2\x80\x9cfree people whose institutions are founded upon the doctrine of equality.\xe2\x80\x9d\nLoving v. Virginia (1967). It follows from that principle that \xe2\x80\x9cgovernment may treat people differently\nbecause of their race only for the most compelling reasons.\xe2\x80\x9d Adarand.\nWe have held that all racial classifications imposed by government \xe2\x80\x9cmust be analyzed by a reviewing\ncourt under strict scrutiny.\xe2\x80\x9d Adarand. This means that such classifications are constitutional only if\nthey are narrowly tailored to further compelling governmental interests. \xe2\x80\x9cAbsent searching judicial\ninquiry into the justification for such race-based measures,\xe2\x80\x9d we have no way to determine what\n\xe2\x80\x9cclassifications are \xe2\x80\x98benign\xe2\x80\x99 or \xe2\x80\x98remedial\xe2\x80\x99 and what classifications are in fact motivated by illegitimate\nnotions of racial inferiority or simple racial politics.\xe2\x80\x9d Richmond v. J. A. Croson Co. (1989) (plurality\nopinion). We apply strict scrutiny to all racial classifications to \xe2\x80\x9c \xe2\x80\x98smoke out\xe2\x80\x99 illegitimate uses of race\nby assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect\ntool.\xe2\x80\x9d Croson.\nStrict scrutiny is not \xe2\x80\x9cstrict in theory, but fatal in fact.\xe2\x80\x9d Adarand. Although all governmental uses of\nrace are subject to strict scrutiny, not all are invalidated by it. As we have explained, \xe2\x80\x9cwhenever the\ngovernment treats any person unequally because of his or her race, that person has suffered an injury\nthat falls squarely within the language and spirit of the Constitution\xe2\x80\x99s guarantee of equal protection.\xe2\x80\x9d\nAdarand. But that observation \xe2\x80\x9csays nothing about the ultimate validity of any particular law; that\ndetermination is the job of the court applying strict scrutiny.\xe2\x80\x9d Id. When race-based action is necessary\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 183\n\n\x0cto further a compelling governmental interest, such action does not violate the constitutional\nguarantee of equal protection so long as the narrow-tailoring requirement is also satisfied.\nContext matters when reviewing race-based governmental action under the Equal Protection Clause.\nIn Adarand Constructors, Inc. v. Pe\xc3\xb1a, we made clear that strict scrutiny must take \xe2\x80\x9c \xe2\x80\x98relevant\ndifferences\xe2\x80\x99 into account.\xe2\x80\x9d Indeed, as we explained, that is its \xe2\x80\x9cfundamental purpose.\xe2\x80\x9d Not every\ndecision influenced by race is equally objectionable and strict scrutiny is designed to provide a\nframework for carefully examining the importance and the sincerity of the reasons advanced by the\ngovernmental decisionmaker for the use of race in that particular context.\n\nIII\nA\nWith these principles in mind, we turn to the question whether the Law School\xe2\x80\x99s use of race is justified\nby a compelling state interest. Before this Court, as they have throughout this litigation, respondents\nassert only one justification for their use of race in the admissions process: obtaining \xe2\x80\x9cthe educational\nbenefits that flow from a diverse student body.\xe2\x80\x9d In other words, the Law School asks us to recognize,\nin the context of higher education, a compelling state interest in student body diversity.\nWe first wish to dispel the notion that the Law School\xe2\x80\x99s argument has been foreclosed, either\nexpressly or implicitly, by our affirmative-action cases decided since Bakke. It is true that some\nlanguage in those opinions might be read to suggest that remedying past discrimination is the only\npermissible justification for race-based governmental action. See, e.g., Richmond v. J. A. Croson Co.,\n(plurality opinion) (stating that unless classifications based on race are \xe2\x80\x9cstrictly reserved for remedial\nsettings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility\xe2\x80\x9d).\nBut we have never held that the only governmental use of race that can survive strict scrutiny is\nremedying past discrimination. Nor, since Bakke, have we directly addressed the use of race in the\ncontext of public higher education. Today, we hold that the Law School has a compelling interest in\nattaining a diverse student body.\nThe Law School\xe2\x80\x99s educational judgment that such diversity is essential to its educational mission is\none to which we defer. The Law School\xe2\x80\x99s assessment that diversity will, in fact, yield educational\nbenefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the\nLaw School is no less strict for taking into account complex educational judgments in an area that lies\nprimarily within the expertise of the university. Our holding today is in keeping with our tradition of\ngiving a degree of deference to a university\xe2\x80\x99s academic decisions, within constitutionally prescribed\nlimits.\nWe have long recognized that, given the important purpose of public education and the expansive\nfreedoms of speech and thought associated with the university environment, universities occupy a\nspecial niche in our constitutional tradition. In announcing the principle of student body diversity as\na compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension,\n184 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cgrounded in the First Amendment, of educational autonomy: \xe2\x80\x9cThe freedom of a university to make its\nown judgments as to education includes the selection of its student body.\xe2\x80\x9d Bakke. From this premise,\nJustice Powell reasoned that by claiming \xe2\x80\x9cthe right to select those students who will contribute the\nmost to the \xe2\x80\x98robust exchange of ideas,\xe2\x80\x99 \xe2\x80\x9d a university \xe2\x80\x9cseek[s] to achieve a goal that is of paramount\nimportance in the fulfillment of its mission.\xe2\x80\x9d Our conclusion that the Law School has a compelling\ninterest in a diverse student body is informed by our view that attaining a diverse student body is\nat the heart of the Law School\xe2\x80\x99s proper institutional mission, and that \xe2\x80\x9cgood faith\xe2\x80\x9d on the part of a\nuniversity is \xe2\x80\x9cpresumed\xe2\x80\x9d absent \xe2\x80\x9ca showing to the contrary.\xe2\x80\x9d\nAs part of its goal of \xe2\x80\x9cassembling a class that is both exceptionally academically qualified and broadly\ndiverse,\xe2\x80\x9d the Law School seeks to \xe2\x80\x9cenroll a \xe2\x80\x98critical mass\xe2\x80\x99 of minority students.\xe2\x80\x9d The Law School\xe2\x80\x99s\ninterest is not simply \xe2\x80\x9cto assure within its student body some specified percentage of a particular\ngroup merely because of its race or ethnic origin.\xe2\x80\x9d Bakke (opinion of Powell, J.). That would amount\nto outright racial balancing, which is patently unconstitutional. Bakke; Freeman v. Pitts (1992) (\xe2\x80\x9cRacial\nbalance is not to be achieved for its own sake\xe2\x80\x9d); Richmond v. J. A. Croson Co. Rather, the Law School\xe2\x80\x99s\nconcept of critical mass is defined by reference to the educational benefits that diversity is designed\nto produce.\nThese benefits are substantial. As the District Court emphasized, the Law School\xe2\x80\x99s admissions policy\npromotes \xe2\x80\x9ccross-racial understanding,\xe2\x80\x9d helps to break down racial stereotypes, and \xe2\x80\x9cenables\n[students] to better understand persons of different races.\xe2\x80\x9d These benefits are \xe2\x80\x9cimportant and\nlaudable,\xe2\x80\x9d because \xe2\x80\x9cclassroom discussion is livelier, more spirited, and simply more enlightening and\ninteresting\xe2\x80\x9d when the students have \xe2\x80\x9cthe greatest possible variety of backgrounds.\xe2\x80\x9d\nThe Law School\xe2\x80\x99s claim of a compelling interest is further bolstered by its amici, who point to the\neducational benefits that flow from student body diversity. In addition to the expert studies and\nreports entered into evidence at trial, numerous studies show that student body diversity promotes\nlearning outcomes, and \xe2\x80\x9cbetter prepares students for an increasingly diverse workforce and society,\nand better prepares them as professionals.\xe2\x80\x9d Brief for American Educational Research Association et al.\nas Amici Curiae 3; see, e.g., W. Bowen & D. Bok, The Shape of the River (1998); Diversity Challenged:\nEvidence on the Impact of Affirmative Action (G. Orfield & M. Kurlaender eds. 2001); Compelling\nInterest: Examining the Evidence on Racial Dynamics in Colleges and Universities (M. Chang, D. Witt,\nJ. Jones, & K. Hakuta eds. 2003).\nThese benefits are not theoretical but real, as major American businesses have made clear that the\nskills needed in today\xe2\x80\x99s increasingly global marketplace can only be developed through exposure to\nwidely diverse people, cultures, ideas, and viewpoints. Brief for 3M et al. as Amici Curiae 5; Brief for\nGeneral Motors Corp. as Amicus Curiae 3\xe2\x80\x944. What is more, high-ranking retired officers and civilian\nleaders of the United States military assert that, \xe2\x80\x9c[b]ased on [their] decades of experience,\xe2\x80\x9d a \xe2\x80\x9chighly\nqualified, racially diverse officer corps \xe2\x80\xa6 is essential to the military\xe2\x80\x99s ability to fulfill its principle\nmission to provide national security.\xe2\x80\x9d Brief for Julius W. Becton, Jr. et al. as Amici Curiae 27. The\nprimary sources for the Nation\xe2\x80\x99s officer corps are the service academies and the Reserve Officers\nTraining Corps (ROTC), the latter comprising students already admitted to participating colleges and\nuniversities. Id., at 5. At present, \xe2\x80\x9cthe military cannot achieve an officer corps that is both highly\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 185\n\n\x0cqualified and racially diverse unless the service academies and the ROTC used limited race-conscious\nrecruiting and admissions policies.\xe2\x80\x9d Ibid. (emphasis in original). To fulfill its mission, the military \xe2\x80\x9cmust\nbe selective in admissions for training and education for the officer corps, and it must train and\neducate a highly qualified, racially diverse officer corps in a racially diverse setting.\xe2\x80\x9d Id., at 29 (emphasis\nin original). We agree that \xe2\x80\x9c[i]t requires only a small step from this analysis to conclude that our\ncountry\xe2\x80\x99s other most selective institutions must remain both diverse and selective.\xe2\x80\x9d Ibid.\nWe have repeatedly acknowledged the overriding importance of preparing students for work and\ncitizenship, describing education as pivotal to \xe2\x80\x9csustaining our political and cultural heritage\xe2\x80\x9d with\na fundamental role in maintaining the fabric of society. Plyler v. Doe (1982). This Court has long\nrecognized that \xe2\x80\x9ceducation \xe2\x80\xa6 is the very foundation of good citizenship.\xe2\x80\x9d Brown v. Board of Education\n(1954). For this reason, the diffusion of knowledge and opportunity through public institutions of\nhigher education must be accessible to all individuals regardless of race or ethnicity. The United\nStates, as amicus curiae, affirms that \xe2\x80\x9c[e]nsuring that public institutions are open and available to all\nsegments of American society, including people of all races and ethnicities, represents a paramount\ngovernment objective.\xe2\x80\x9d And, \xe2\x80\x9c[n]owhere is the importance of such openness more acute than in the\ncontext of higher education.\xe2\x80\x9d Effective participation by members of all racial and ethnic groups in the\ncivic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.\nMoreover, universities, and in particular, law schools, represent the training ground for a large\nnumber of our Nation\xe2\x80\x99s leaders. Sweatt v. Painter (1950) (describing law school as a \xe2\x80\x9cproving ground for\nlegal learning and practice\xe2\x80\x9d). Individuals with law degrees occupy roughly half the state governorships,\nmore than half the seats in the United States Senate, and more than a third of the seats in the United\nStates House of Representatives. See Brief for Association of American Law Schools as Amicus Curiae\n5\xe2\x80\x946. The pattern is even more striking when it comes to highly selective law schools. A handful of\nthese schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals\njudges, and nearly 200 of the more than 600 United States District Court judges.\nIn order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that\nthe path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.\nAll members of our heterogeneous society must have confidence in the openness and integrity of\nthe educational institutions that provide this training. As we have recognized, law schools \xe2\x80\x9ccannot be\neffective in isolation from the individuals and institutions with which the law interacts.\xe2\x80\x9d See Sweatt\nv. Painter. Access to legal education (and thus the legal profession) must be inclusive of talented and\nqualified individuals of every race and ethnicity, so that all members of our heterogeneous society\nmay participate in the educational institutions that provide the training and education necessary to\nsucceed in America.\nThe Law School does not premise its need for critical mass on \xe2\x80\x9cany belief that minority students\nalways (or even consistently) express some characteristic minority viewpoint on any issue.\xe2\x80\x9d To the\ncontrary, diminishing the force of such stereotypes is both a crucial part of the Law School\xe2\x80\x99s mission,\nand one that it cannot accomplish with only token numbers of minority students. Just as growing up\nin a particular region or having particular professional experiences is likely to affect an individual\xe2\x80\x99s\nviews, so too is one\xe2\x80\x99s own, unique experience of being a racial minority in a society, like our own, in\n186 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cwhich race unfortunately still matters. The Law School has determined, based on its experience and\nexpertise, that a \xe2\x80\x9ccritical mass\xe2\x80\x9d of underrepresented minorities is necessary to further its compelling\ninterest in securing the educational benefits of a diverse student body.\n\nB\nEven in the limited circumstance when drawing racial distinctions is permissible to further a\ncompelling state interest, government is still \xe2\x80\x9cconstrained in how it may pursue that end: [T]he means\nchosen to accomplish the [government\xe2\x80\x99s] asserted purpose must be specifically and narrowly framed\nto accomplish that purpose.\xe2\x80\x9d The purpose of the narrow tailoring requirement is to ensure that \xe2\x80\x9cthe\nmeans chosen \xe2\x80\x98fit\xe2\x80\x99 \xe2\x80\xa6 th[e] compelling goal so closely that there is little or no possibility that the\nmotive for the classification was illegitimate racial prejudice or stereotype.\xe2\x80\x9d Richmond v. J. A. Croson\nCo. (plurality opinion).\n* * * * To be narrowly tailored, a race-conscious admissions program cannot use a quota system\xe2\x80\x93it\ncannot \xe2\x80\x9cinsulat[e] each category of applicants with certain desired qualifications from competition\nwith all other applicants.\xe2\x80\x9d Bakke (opinion of Powell, J.). Instead, a university may consider race or\nethnicity only as a \xe2\x80\x9c \xe2\x80\x98plus\xe2\x80\x99 in a particular applicant\xe2\x80\x99s file,\xe2\x80\x9d without \xe2\x80\x9cinsulat[ing] the individual from\ncomparison with all other candidates for the available seats.\xe2\x80\x9d In other words, an admissions program\nmust be \xe2\x80\x9cflexible enough to consider all pertinent elements of diversity in light of the particular\nqualifications of each applicant, and to place them on the same footing for consideration, although\nnot necessarily according them the same weight.\xe2\x80\x9d\nWe find that the Law School\xe2\x80\x99s admissions program bears the hallmarks of a narrowly tailored plan.\nAs Justice Powell made clear in Bakke, truly individualized consideration demands that race be used\nin a flexible, nonmechanical way. It follows from this mandate that universities cannot establish\nquotas for members of certain racial groups or put members of those groups on separate admissions\ntracks. Nor can universities insulate applicants who belong to certain racial or ethnic groups from the\ncompetition for admission. Universities can, however, consider race or ethnicity more flexibly as a\n\xe2\x80\x9cplus\xe2\x80\x9d factor in the context of individualized consideration of each and every applicant.\nWe are satisfied that the Law School\xe2\x80\x99s admissions program, like the Harvard plan described by Justice\nPowell, does not operate as a quota. Properly understood, a \xe2\x80\x9cquota\xe2\x80\x9d is a program in which a certain\nfixed number or proportion of opportunities are \xe2\x80\x9creserved exclusively for certain minority groups.\xe2\x80\x9d\nRichmond v. J. A. Croson Co. (plurality opinion). Quotas \xe2\x80\x9c \xe2\x80\x98impose a fixed number or percentage which\nmust be attained, or which cannot be exceeded,\xe2\x80\x99 \xe2\x80\x9d and \xe2\x80\x9cinsulate the individual from comparison with\nall other candidates for the available seats.\xe2\x80\x9d Bakke (opinion of Powell, J.). In contrast, \xe2\x80\x9ca permissible\ngoal \xe2\x80\xa6 require[s] only a good-faith effort \xe2\x80\xa6 to come within a range demarcated by the goal itself,\xe2\x80\x9d\nand permits consideration of race as a \xe2\x80\x9cplus\xe2\x80\x9d factor in any given case while still ensuring that each\ncandidate \xe2\x80\x9ccompete[s] with all other qualified applicants.\xe2\x80\x9d\n* * * * The Law School\xe2\x80\x99s goal of attaining a critical mass of underrepresented minority students does\nnot transform its program into a quota. As the Harvard plan described by Justice Powell recognized,\nthere is of course \xe2\x80\x9csome relationship between numbers and achieving the benefits to be derived\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 187\n\n\x0cfrom a diverse student body, and between numbers and providing a reasonable environment for\nthose students admitted.\xe2\x80\x9d \xe2\x80\x9c[S]ome attention to numbers,\xe2\x80\x9d without more, does not transform a flexible\nadmissions system into a rigid quota. Nor, as Justice Kennedy posits {in a dissenting opinion} does the\nLaw School\xe2\x80\x99s consultation of the \xe2\x80\x9cdaily reports,\xe2\x80\x9d which keep track of the racial and ethnic composition\nof the class (as well as of residency and gender), \xe2\x80\x9csuggest[ ] there was no further attempt at individual\nreview save for race itself\xe2\x80\x9d during the final stages of the admissions process. To the contrary, the Law\nSchool\xe2\x80\x99s admissions officers testified without contradiction that they never gave race any more or less\nweight based on the information contained in these reports. Moreover, as Justice Kennedy concedes,\nbetween 1993 and 2000, the number of African-American, Latino, and Native-American students in\neach class at the Law School varied from 13.5 to 20.1 percent, a range inconsistent with a quota.\nThe Chief Justice {in his dissenting opinion} believes that the Law School\xe2\x80\x99s policy conceals an attempt\nto achieve racial balancing, and cites admissions data to contend that the Law School discriminates\namong different groups within the critical mass. But, as The Chief Justice concedes, the number of\nunderrepresented minority students who ultimately enroll in the Law School differs substantially from\ntheir representation in the applicant pool and varies considerably for each group from year to year.\nThat a race-conscious admissions program does not operate as a quota does not, by itself, satisfy\nthe requirement of individualized consideration. When using race as a \xe2\x80\x9cplus\xe2\x80\x9d factor in university\nadmissions, a university\xe2\x80\x99s admissions program must remain flexible enough to ensure that each\napplicant is evaluated as an individual and not in a way that makes an applicant\xe2\x80\x99s race or ethnicity\nthe defining feature of his or her application. The importance of this individualized consideration in\nthe context of a race-conscious admissions program is paramount. See Bakke (opinion of Powell, J.)\n(identifying the \xe2\x80\x9cdenial \xe2\x80\xa6 of th[e] right to individualized consideration\xe2\x80\x9d as the \xe2\x80\x9cprincipal evil\xe2\x80\x9d of the\nmedical school\xe2\x80\x99s admissions program).\nHere, the Law School engages in a highly individualized, holistic review of each applicant\xe2\x80\x99s file,\ngiving serious consideration to all the ways an applicant might contribute to a diverse educational\nenvironment. The Law School affords this individualized consideration to applicants of all races. There\nis no policy, either de jure or de facto, of automatic acceptance or rejection based on any single \xe2\x80\x9csoft\xe2\x80\x9d\nvariable. Unlike the program at issue in Gratz v. Bollinger, the Law School awards no mechanical,\npredetermined diversity \xe2\x80\x9cbonuses\xe2\x80\x9d based on race or ethnicity. Like the Harvard plan, the Law School\xe2\x80\x99s\nadmissions policy \xe2\x80\x9cis flexible enough to consider all pertinent elements of diversity in light of the\nparticular qualifications of each applicant, and to place them on the same footing for consideration,\nalthough not necessarily according them the same weight.\xe2\x80\x9d Bakke (opinion of Powell, J.).\nWe also find that, like the Harvard plan Justice Powell referenced in Bakke, the Law School\xe2\x80\x99s raceconscious admissions program adequately ensures that all factors that may contribute to student\nbody diversity are meaningfully considered alongside race in admissions decisions. With respect to\nthe use of race itself, all underrepresented minority students admitted by the Law School have been\ndeemed qualified. By virtue of our Nation\xe2\x80\x99s struggle with racial inequality, such students are both\nlikely to have experiences of particular importance to the Law School\xe2\x80\x99s mission, and less likely to be\nadmitted in meaningful numbers on criteria that ignore those experiences.\nThe Law School does not, however, limit in any way the broad range of qualities and experiences\n188 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cthat may be considered valuable contributions to student body diversity. To the contrary, the 1992\npolicy makes clear \xe2\x80\x9c[t]here are many possible bases for diversity admissions,\xe2\x80\x9d and provides examples\nof admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome\npersonal adversity and family hardship, have exceptional records of extensive community service,\nand have had successful careers in other fields. The Law School seriously considers each \xe2\x80\x9capplicant\xe2\x80\x99s\npromise of making a notable contribution to the class by way of a particular strength, attainment,\nor characteristic\xe2\x80\x93e.g., an unusual intellectual achievement, employment experience, nonacademic\nperformance, or personal background.\xe2\x80\x9d All applicants have the opportunity to highlight their own\npotential diversity contributions through the submission of a personal statement, letters of\nrecommendation, and an essay describing the ways in which the applicant will contribute to the life\nand diversity of the Law School.\nWhat is more, the Law School actually gives substantial weight to diversity factors besides race.\nThe Law School frequently accepts nonminority applicants with grades and test scores lower than\nunderrepresented minority applicants (and other nonminority applicants) who are rejected. This\nshows that the Law School seriously weighs many other diversity factors besides race that can make\na real and dispositive difference for nonminority applicants as well. By this flexible approach, the Law\nSchool sufficiently takes into account, in practice as well as in theory, a wide variety of characteristics\nbesides race and ethnicity that contribute to a diverse student body. Justice Kennedy {in dissenting\nopinion} speculates that \xe2\x80\x9crace is likely outcome determinative for many members of minority groups\xe2\x80\x9d\nwho do not fall within the upper range of LSAT scores and grades. But the same could be said of the\nHarvard plan discussed approvingly by Justice Powell in Bakke, and indeed of any plan that uses race\nas one of many factors.\nPetitioner and the United States argue that the Law School\xe2\x80\x99s plan is not narrowly tailored because\nrace-neutral means exist to obtain the educational benefits of student body diversity that the Law\nSchool seeks. We disagree. Narrow tailoring does not require exhaustion of every conceivable raceneutral alternative. Nor does it require a university to choose between maintaining a reputation for\nexcellence or fulfilling a commitment to provide educational opportunities to members of all racial\ngroups. See Wygant v. Jackson Bd. of Ed (1986) (alternatives must serve the interest \xe2\x80\x9c \xe2\x80\x98about as well\xe2\x80\x99 \xe2\x80\x9d);\nRichmond v. J. A. Croson Co.(plurality opinion) (city had a \xe2\x80\x9cwhole array of race-neutral\xe2\x80\x9d alternatives\nbecause changing requirements \xe2\x80\x9cwould have [had] little detrimental effect on the city\xe2\x80\x99s interests\xe2\x80\x9d).\nNarrow tailoring does, however, require serious, good faith consideration of workable race-neutral\nalternatives that will achieve the diversity the university seeks.\nWe agree with the Court of Appeals that the Law School sufficiently considered workable raceneutral alternatives. The District Court took the Law School to task for failing to consider raceneutral alternatives such as \xe2\x80\x9cusing a lottery system\xe2\x80\x9d or \xe2\x80\x9cdecreasing the emphasis for all applicants\non undergraduate GPA and LSAT scores.\xe2\x80\x9d But these alternatives would require a dramatic sacrifice of\ndiversity, the academic quality of all admitted students, or both.\nThe Law School\xe2\x80\x99s current admissions program considers race as one factor among many, in an effort\nto assemble a student body that is diverse in ways broader than race. Because a lottery would make\nthat kind of nuanced judgment impossible, it would effectively sacrifice all other educational values,\nnot to mention every other kind of diversity. So too with the suggestion that the Law School simply\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 189\n\n\x0clower admissions standards for all students, a drastic remedy that would require the Law School to\nbecome a much different institution and sacrifice a vital component of its educational mission. The\nUnited States advocates \xe2\x80\x9cpercentage plans,\xe2\x80\x9d recently adopted by public undergraduate institutions\nin Texas, Florida, and California to guarantee admission to all students above a certain class-rank\nthreshold in every high school in the State. Brief for United States as Amicus Curiae 14\xe2\x80\x9418. The\nUnited States does not, however, explain how such plans could work for graduate and professional\nschools. More-over, even assuming such plans are race-neutral, they may preclude the university\nfrom conducting the individualized assessments necessary to assemble a student body that is not just\nracially diverse, but diverse along all the qualities valued by the university. We are satisfied that the\nLaw School adequately considered race-neutral alternatives currently capable of producing a critical\nmass without forcing the Law School to abandon the academic selectivity that is the cornerstone of\nits educational mission.\nWe acknowledge that \xe2\x80\x9cthere are serious problems of justice connected with the idea of preference\nitself.\xe2\x80\x9d Bakke (opinion of Powell, J.). Narrow tailoring, therefore, requires that a race-conscious\nadmissions program not unduly harm members of any racial group. Even remedial race-based\ngovernmental action generally \xe2\x80\x9cremains subject to continuing oversight to assure that it will work the\nleast harm possible to other innocent persons competing for the benefit.\xe2\x80\x9d Id. To be narrowly tailored,\na race-conscious admissions program must not \xe2\x80\x9cunduly burden individuals who are not members of\nthe favored racial and ethnic groups.\xe2\x80\x9d Metro Broadcasting, Inc. v. FCC (1990) (O\xe2\x80\x99Connor, J., dissenting).\nWe are satisfied that the Law School\xe2\x80\x99s admissions program does not. Because the Law School\nconsiders \xe2\x80\x9call pertinent elements of diversity,\xe2\x80\x9d it can (and does) select nonminority applicants who\nhave greater potential to enhance student body diversity over underrepresented minority applicants.\nSee Bakke (opinion of Powell, J.). As Justice Powell recognized in Bakke, so long as a race-conscious\nadmissions program uses race as a \xe2\x80\x9cplus\xe2\x80\x9d factor in the context of individualized consideration, a\nrejected applicant \xe2\x80\x9cwill not have been foreclosed from all consideration for that seat simply because he\nwas not the right color or had the wrong surname\xe2\x80\xa6. His qualifications would have been weighed fairly\nand competitively, and he would have no basis to complain of unequal treatment under the Fourteenth\nAmendment.\xe2\x80\x9d\nWe agree that, in the context of its individualized inquiry into the possible diversity contributions\nof all applicants, the Law School\xe2\x80\x99s race-conscious admissions program does not unduly harm\nnonminority applicants.\nWe are mindful, however, that \xe2\x80\x9c[a] core purpose of the Fourteenth Amendment was to do away\nwith all governmentally imposed discrimination based on race.\xe2\x80\x9d Palmore v. Sidoti (1984). Accordingly,\nrace-conscious admissions policies must be limited in time. This requirement reflects that racial\nclassifications, however compelling their goals, are potentially so dangerous that they may be\nemployed no more broadly than the interest demands. Enshrining a permanent justification for racial\npreferences would offend this fundamental equal protection principle. We see no reason to exempt\nrace-conscious admissions programs from the requirement that all governmental use of race must\nhave a logical end point. The Law School, too, concedes that all \xe2\x80\x9crace-conscious programs must have\nreasonable durational limits.\xe2\x80\x9d\n190 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cIn the context of higher education, the durational requirement can be met by sunset provisions in\nrace-conscious admissions policies and periodic reviews to determine whether racial preferences are\nstill necessary to achieve student body diversity. * * * *\nWe take the Law School at its word that it would \xe2\x80\x9clike nothing better than to find a race-neutral\nadmissions formula\xe2\x80\x9d and will terminate its race-conscious admissions program as soon as practicable.\nIt has been 25 years since Justice Powell first approved the use of race to further an interest in student\nbody diversity in the context of public higher education. Since that time, the number of minority\napplicants with high grades and test scores has indeed increased. We expect that 25 years from now,\nthe use of racial preferences will no longer be necessary to further the interest approved today.\n\nIV\nIn summary, the Equal Protection Clause does not prohibit the Law School\xe2\x80\x99s narrowly tailored use of\nrace in admissions decisions to further a compelling interest in obtaining the educational benefits that\nflow from a diverse student body. * * * * The judgment of the Court of Appeals for the Sixth Circuit,\naccordingly, is affirmed.\nCHIEF JUSTICE REHNQUIST, WITH WHOM JUSTICE SCALIA, JUSTICE KENNEDY, AND JUSTICE THOMAS JOIN, DISSENTING.\nI agree with the Court that, \xe2\x80\x9cin the limited circumstance when drawing racial distinctions is\npermissible,\xe2\x80\x9d the government must ensure that its means are narrowly tailored to achieve a compelling\nstate interest. I do not believe, however, that the University of Michigan Law School\xe2\x80\x99s (Law School)\nmeans are narrowly tailored to the interest it asserts. The Law School claims it must take the steps\nit does to achieve a \xe2\x80\x9c \xe2\x80\x98critical mass\xe2\x80\x99 \xe2\x80\x9d of underrepresented minority students. But its actual program\nbears no relation to this asserted goal. Stripped of its \xe2\x80\x9ccritical mass\xe2\x80\x9d veil, the Law School\xe2\x80\x99s program is\nrevealed as a naked effort to achieve racial balancing.\n* * * * Although the Court recites the language of our strict scrutiny analysis, its application of that\nreview is unprecedented in its deference.\n* * * * Respondents\xe2\x80\x99 asserted justification for the Law School\xe2\x80\x99s use of race in the admissions process\nis \xe2\x80\x9cobtaining \xe2\x80\x98the educational benefits that flow from a diverse student body.\xe2\x80\x99 \xe2\x80\x9d They contend that\na \xe2\x80\x9ccritical mass\xe2\x80\x9d of underrepresented minorities is necessary to further that interest. Respondents\nand school administrators explain generally that \xe2\x80\x9ccritical mass\xe2\x80\x9d means a sufficient number of\nunderrepresented minority students to achieve several objectives: To ensure that these minority\nstudents do not feel isolated or like spokespersons for their race; to provide adequate opportunities\nfor the type of interaction upon which the educational benefits of diversity depend; and to challenge\nall students to think critically and reexamine stereotypes. * * * *\nIn practice, the Law School\xe2\x80\x99s program bears little or no relation to its asserted goal of achieving\n\xe2\x80\x9ccritical mass.\xe2\x80\x9d Respondents explain that the Law School seeks to accumulate a \xe2\x80\x9ccritical mass\xe2\x80\x9d of each\nunderrepresented minority group. But the record demonstrates that the Law School\xe2\x80\x99s admissions\n\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 191\n\n\x0cpractices with respect to these groups differ dramatically and cannot be defended under any\nconsistent use of the term \xe2\x80\x9ccritical mass.\xe2\x80\x9d\nFrom 1995 through 2000, the Law School admitted between 1,130 and 1,310 students. Of those,\nbetween 13 and 19 were Native American, between 91 and 108 were African-Americans, and between\n47 and 56 were Hispanic. If the Law School is admitting between 91 and 108 African-Americans in\norder to achieve \xe2\x80\x9ccritical mass,\xe2\x80\x9d thereby preventing African-American students from feeling \xe2\x80\x9cisolated\nor like spokespersons for their race,\xe2\x80\x9d one would think that a number of the same order of magnitude\nwould be necessary to accomplish the same purpose for Hispanics and Native Americans. Similarly,\neven if all of the Native American applicants admitted in a given year matriculate, which the record\ndemonstrates is not at all the case, how can this possibly constitute a \xe2\x80\x9ccritical mass\xe2\x80\x9d of Native\nAmericans in a class of over 350 students? In order for this pattern of admission to be consistent\nwith the Law School\xe2\x80\x99s explanation of \xe2\x80\x9ccritical mass,\xe2\x80\x9d one would have to believe that the objectives of\n\xe2\x80\x9ccritical mass\xe2\x80\x9d offered by respondents are achieved with only half the number of Hispanics and onesixth the number of Native Americans as compared to African-Americans. But respondents offer no\nrace-specific reasons for such disparities. Instead, they simply emphasize the importance of achieving\n\xe2\x80\x9ccritical mass,\xe2\x80\x9d without any explanation of why that concept is applied differently among the three\nunderrepresented minority groups.* * * *\nOnly when the \xe2\x80\x9ccritical mass\xe2\x80\x9d label is discarded does a likely explanation for these numbers emerge.\n****\n[T]he correlation between the percentage of the Law School\xe2\x80\x99s pool of applicants who are members\nof the three minority groups and the percentage of the admitted applicants who are members of\nthese same groups is far too precise to be dismissed as merely the result of the school paying \xe2\x80\x9csome\nattention to [the] numbers.\xe2\x80\x9d As the tables below show, from 1995 through 2000 the percentage of\nadmitted applicants who were members of these minority groups closely tracked the percentage of\nindividuals in the school\xe2\x80\x99s applicant pool who were from the same groups.\n* * * *For example, in 1995, when 9.7% of the applicant pool was African-American, 9.4% of the\nadmitted class was African-American. By 2000, only 7.5% of the applicant pool was African-American,\nand 7.3% of the admitted class was African-American. This correlation is striking. Respondents\nthemselves emphasize that the number of underrepresented minority students admitted to the Law\nSchool would be significantly smaller if the race of each applicant were not considered. But, as\nthe examples above illustrate, the measure of the decrease would differ dramatically among the\ngroups. The tight correlation between the percentage of applicants and admittees of a given race,\ntherefore, must result from careful race based planning by the Law School. It suggests a formula for\nadmission based on the aspirational assumption that all applicants are equally qualified academically,\nand therefore that the proportion of each group admitted should be the same as the proportion of\nthat group in the applicant pool. * * * *\nI do not believe that the Constitution gives the Law School such free rein in the use of race. The\nLaw School has offered no explanation for its actual admissions practices and, unexplained, we are\nbound to conclude that the Law School has managed its admissions program, not to achieve a \xe2\x80\x9ccritical\nmass,\xe2\x80\x9d but to extend offers of admission to members of selected minority groups in proportion to their\n192 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cstatistical representation in the applicant pool. But this is precisely the type of racial balancing that\nthe Court itself calls \xe2\x80\x9cpatently unconstitutional.\xe2\x80\x9d.\nFinally, I believe that the Law School\xe2\x80\x99s program fails strict scrutiny because it is devoid of any\nreasonably precise time limit on the Law School\xe2\x80\x99s use of race in admissions. * * * *\n{other dissenting opinions omitted}\n\nNote: Gratz v. Bollinger\nIn Gratz v. Bollinger, 539 U.S. 244 (2003), a companion case to Grutter, the Court decided that the\nundergraduate admissions policy of University of Michigan violated the Equal Protection Clause.\nThe admissions policy allocated points to candidates on a number of factors: high school grades,\nstandardized test scores, high school quality, curriculum strength, geography, alumni relationships,\nleadership, and racial/ethnic minority status. Applicants from an \xe2\x80\x9cunder-represented racial or ethnic\nminority\xe2\x80\x9d were awarded 20 points toward the 100 needed for admission. In a 5-4 opinion issued the\nsame day as Grutter, the majority opinion by Chief Justice Rehnquist (joined by O\xe2\x80\x99Connor, Scalia,\nKennedy, and Thomas) found that \xe2\x80\x9cthe University\xe2\x80\x99s policy, which automatically distributes 20 points,\nor one-fifth of the points needed to guarantee admission, to every single \xe2\x80\x98underrepresented minority\xe2\x80\x99\napplicant solely because of race, is not narrowly tailored to achieve the interest in educational\ndiversity that respondents claim justifies their program.\xe2\x80\x9d\nNotable among the dissenting opinions is the one by Justice Ginsburg (joined by Justice Souter),\nwhich pointed out a possible consequence of the Court\xe2\x80\x99s opinion for universities that wish to promote\ndiversity:\nThe stain of generations of racial oppression is still visible in our society and the determination\nto hasten its removal remains vital. One can reasonably anticipate, therefore, that colleges\nand universities will seek to maintain their minority enrollment\xe2\x80\x93and the networks and\nopportunities thereby opened to minority graduates\xe2\x80\x93whether or not they can do so in full\ncandor through adoption of affirmative action plans of the kind here at issue. Without\nrecourse to such plans, institutions of higher education may resort to camouflage. For\nexample, schools may encourage applicants to write of their cultural traditions in the essays\nthey submit, or to indicate whether English is their second language. Seeking to improve\ntheir chances for admission, applicants may highlight the minority group associations to\nwhich they belong, or the Hispanic surnames of their mothers or grandparents. In turn,\nteachers\xe2\x80\x99 recommendations may emphasize who a student is as much as what he or she has\naccomplished. See, e.g., Steinberg, Using Synonyms for Race, College Strives for Diversity, N.\nY. Times, Dec. 8, 2002, section 1, p. 1, col. 3 (describing admissions process at Rice University);\ncf. Brief for United States as Amicus Curiae 14\xe2\x80\x9415 (suggesting institutions could consider,\ninter alia, \xe2\x80\x9ca history of overcoming disadvantage,\xe2\x80\x9d \xe2\x80\x9creputation and location of high school,\xe2\x80\x9d\nand \xe2\x80\x9cindividual outlook as reflected by essays\xe2\x80\x9d). If honesty is the best policy, surely Michigan\xe2\x80\x99s\naccurately described, fully disclosed College affirmative action program is preferable to\nachieving similar numbers through winks, nods, and disguises.\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 193\n\n\x0cCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=35#h5p-68\n\nParents Involved in Community Schools v. Seattle School District No. 1\n551 U.S. 701 (2007)\nROBERTS, C.J., ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED THE OPINION OF THE COURT WITH RESPECT\nTO PARTS I, II, III\xe2\x80\x93A, AND III\xe2\x80\x93C, IN WHICH SCALIA, KENNEDY, THOMAS, AND ALITO, JJ., JOINED, AND AN OPINION WITH\nRESPECT TO PARTS III\xe2\x80\x93B AND IV, IN WHICH SCALIA, THOMAS, AND ALITO, JJ., JOINED. THOMAS, J., FILED A\nCONCURRING OPINION. KENNEDY, J., FILED AN OPINION CONCURRING IN PART AND CONCURRING IN THE JUDGMENT.\nSTEVENS, J., FILED A DISSENTING OPINION. BREYER, J., FILED A DISSENTING OPINION, IN WHICH STEVENS, SOUTER, AND\nGINSBURG, JJ., JOINED.\nCHIEF JUSTICE ROBERTS ANNOUNCED THE JUDGMENT OF THE COURT, AND DELIVERED THE OPINION OF THE COURT\nWITH RESPECT TO PARTS I, II, III\xe2\x80\x93A, AND III\xe2\x80\x93C, AND AN OPINION WITH RESPECT TO PARTS III\xe2\x80\x93B AND IV, IN WHICH\nJUSTICES SCALIA, THOMAS, AND ALITO JOIN.\nThe school districts in these cases voluntarily adopted student assignment plans that rely upon\nrace to determine which public schools certain children may attend. The Seattle school district\nclassifies children as white or nonwhite; the Jefferson County school district as black or \xe2\x80\x9cother.\xe2\x80\x9d In\nSeattle, this racial classification is used to allocate slots in oversubscribed high schools. In Jefferson\nCounty, it is used to make certain elementary school assignments and to rule on transfer requests.\nIn each case, the school district relies upon an individual student\xe2\x80\x99s race in assigning that student to\na particular school, so that the racial balance at the school falls within a predetermined range based\non the racial composition of the school district as a whole. Parents of students denied assignment\nto particular schools under these plans solely because of their race brought suit, contending that\nallocating children to different public schools on the basis of race violated the Fourteenth Amendment\nguarantee of equal protection. The Courts of Appeals below upheld the plans. We granted certiorari,\nand now reverse.\n\nI\nBoth cases present the same underlying legal question\xe2\x80\x94whether a public school that had not operated\nlegally segregated schools or has been found to be unitary may choose to classify students by race\n194 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cand rely upon that classification in making school assignments. Although we examine the plans under\nthe same legal framework, the specifics of the two plans, and the circumstances surrounding their\nadoption, are in some respects quite different.\n\nA\nSeattle School District No. 1 operates 10 regular public high schools. In 1998, it adopted the plan at\nissue in this case for assigning students to these schools. The plan allows incoming ninth graders to\nchoose from among any of the district\xe2\x80\x99s high schools, ranking however many schools they wish in\norder of preference.\nSome schools are more popular than others. If too many students list the same school as their first\nchoice, the district employs a series of \xe2\x80\x9ctiebreakers\xe2\x80\x9d to determine who will fill the open slots at\nthe oversubscribed school. The first tiebreaker selects for admission students who have a sibling\ncurrently enrolled in the chosen school. The next tiebreaker depends upon the racial composition\nof the particular school and the race of the individual student. In the district\xe2\x80\x99s public schools\napproximately 41 percent of enrolled students are white; the remaining 59 percent, comprising\nall other racial groups, are classified by Seattle for assignment purposes as nonwhite. If an\noversubscribed school is not within 10 percentage points of the district\xe2\x80\x99s overall white/nonwhite\nracial balance, it is what the district calls \xe2\x80\x9cintegration positive,\xe2\x80\x9d and the district employs a tiebreaker\nthat selects for assignment students whose race \xe2\x80\x9cwill serve to bring the school into balance.\xe2\x80\x9d If it is\nstill necessary to select students for the school after using the racial tiebreaker, the next tiebreaker is\nthe geographic proximity of the school to the student\xe2\x80\x99s residence.\nSeattle has never operated segregated schools\xe2\x80\x94legally separate schools for students of different\nraces\xe2\x80\x94nor has it ever been subject to court-ordered desegregation. It nonetheless employs the racial\ntiebreaker in an attempt to address the effects of racially identifiable housing patterns on school\nassignments. Most white students live in the northern part of Seattle, most students of other racial\nbackgrounds in the southern part. Four of Seattle\xe2\x80\x99s high schools are located in the north\xe2\x80\x94Ballard,\nNathan Hale, Ingraham, and Roosevelt\xe2\x80\x94and five in the south\xe2\x80\x94Rainier Beach, Cleveland, West Seattle,\nChief Sealth, and Franklin. One school\xe2\x80\x94Garfield\xe2\x80\x94is more or less in the center of Seattle.\nFor the 2000\xe2\x80\x932001 school year, five of these schools were oversubscribed\xe2\x80\x94Ballard, Nathan Hale,\nRoosevelt, Garfield, and Franklin\xe2\x80\x94so much so that 82 percent of incoming ninth graders ranked one\nof these schools as their first choice. Three of the oversubscribed schools were \xe2\x80\x9cintegration positive\xe2\x80\x9d\nbecause the school\xe2\x80\x99s white enrollment the previous school year was greater than 51 percent\xe2\x80\x94Ballard,\nNathan Hale, and Roosevelt. Thus, more nonwhite students (107, 27, and 82, respectively) who selected\none of these three schools as a top choice received placement at the school than would have been the\ncase had race not been considered, and proximity been the next tiebreaker. Franklin was \xe2\x80\x9cintegration\npositive\xe2\x80\x9d because its nonwhite enrollment the previous school year was greater than 69 percent; 89\nmore white students were assigned to Franklin by operation of the racial tiebreaker in the 2000\xe2\x80\x932001\nschool year than otherwise would have been. Garfield was the only oversubscribed school whose\ncomposition during the 1999\xe2\x80\x932000 school year was within the racial guidelines, although in previous\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 195\n\n\x0cyears Garfield\xe2\x80\x99s enrollment had been predominantly nonwhite, and the racial tiebreaker had been\nused to give preference to white students.\nPetitioner Parents Involved in Community Schools (Parents Involved) is a nonprofit corporation\ncomprising the parents of children who have been or may be denied assignment to their chosen\nhigh school in the district because of their race. The concerns of Parents Involved are illustrated by\nJill Kurfirst, who sought to enroll her ninth-grade son, Andy Meeks, in Ballard High School\xe2\x80\x99s special\nBiotechnology Career Academy. Andy suffered from attention deficit hyperactivity disorder and\ndyslexia, but had made good progress with hands-on instruction, and his mother and middle school\nteachers thought that the smaller biotechnology program held the most promise for his continued\nsuccess. Andy was accepted into this selective program but, because of the racial tiebreaker, was\ndenied assignment to Ballard High School. Parents Involved commenced this suit in the Western\nDistrict of Washington, alleging that Seattle\xe2\x80\x99s use of race in assignments violated the Equal Protection\nClause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and the Washington Civil\nRights Act.\nThe District Court granted summary judgment to the school district, finding that state law did not\nbar the district\xe2\x80\x99s use of the racial tiebreaker and that the plan survived strict scrutiny on the federal\nconstitutional claim because it was narrowly tailored to serve a compelling government interest.\nThe Ninth Circuit initially reversed based on its interpretation of the Washington Civil Rights Act\n* * * * {and after proceedings on this issue, a} panel of the Ninth Circuit then again reversed the\nDistrict Court, this time ruling on the federal constitutional question. The panel determined that\nwhile achieving racial diversity and avoiding racial isolation are compelling government interests,\nSeattle\xe2\x80\x99s use of the racial tiebreaker was not narrowly tailored to achieve these interests. The Ninth\nCircuit granted rehearing en banc, and overruled the panel decision, affirming the District Court\xe2\x80\x99s\ndetermination that Seattle\xe2\x80\x99s plan was narrowly tailored to serve a compelling government interest. We\ngranted certiorari.\n\nB\nJefferson County Public Schools operates the public school system in metropolitan Louisville,\nKentucky. In 1973 a federal court found that Jefferson County had maintained a segregated school\nsystem, and in 1975 the District Court entered a desegregation decree. Jefferson County operated\nunder this decree until 2000, when the District Court dissolved the decree after finding that the\ndistrict had achieved unitary status by eliminating \xe2\x80\x9c[t]o the greatest extent practicable\xe2\x80\x9d the vestiges\nof its prior policy of segregation.\nIn 2001, after the decree had been dissolved, Jefferson County adopted the voluntary student\nassignment plan at issue in this case. Approximately 34 percent of the district\xe2\x80\x99s 97,000 students\nare black; most of the remaining 66 percent are white. The plan requires all nonmagnet schools to\nmaintain a minimum black enrollment of 15 percent, and a maximum black enrollment of 50 percent.\nAt the elementary school level, based on his or her address, each student is designated a \xe2\x80\x9cresides\xe2\x80\x9d\nschool to which students within a specific geographic area are assigned; elementary resides schools\n196 | Liberty, Equality, and Due Process: Third Edition\n\n\x0care \xe2\x80\x9cgrouped into clusters in order to facilitate integration.\xe2\x80\x9d The district assigns students to\nnonmagnet schools in one of two ways: Parents of kindergartners, first-graders, and students new to\nthe district may submit an application indicating a first and second choice among the schools within\ntheir cluster; students who do not submit such an application are assigned within the cluster by the\ndistrict. \xe2\x80\x9cDecisions to assign students to schools within each cluster are based on available space\nwithin the schools and the racial guidelines in the District\xe2\x80\x99s current student assignment plan.\xe2\x80\x9d If a\nschool has reached the \xe2\x80\x9cextremes of the racial guidelines,\xe2\x80\x9d a student whose race would contribute\nto the school\xe2\x80\x99s racial imbalance will not be assigned there. After assignment, students at all grade\nlevels are permitted to apply to transfer between nonmagnet schools in the district. Transfers may be\nrequested for any number of reasons, and may be denied because of lack of available space or on the\nbasis of the racial guidelines.\nWhen petitioner Crystal Meredith moved into the school district in August 2002, she sought to enroll\nher son, Joshua McDonald, in kindergarten for the 2002\xe2\x80\x932003 school year. His resides school was\nonly a mile from his new home, but it had no available space\xe2\x80\x94assignments had been made in May,\nand the class was full. Jefferson County assigned Joshua to another elementary school in his cluster,\nYoung Elementary. This school was 10 miles from home, and Meredith sought to transfer Joshua to a\nschool in a different cluster, Bloom Elementary, which\xe2\x80\x94like his resides school\xe2\x80\x94was only a mile from\nhome. Space was available at Bloom, and intercluster transfers are allowed, but Joshua\xe2\x80\x99s transfer was\nnonetheless denied because, in the words of Jefferson County, \xe2\x80\x9c[t]he transfer would have an adverse\neffect on desegregation compliance\xe2\x80\x9d of Young.\nMeredith brought suit in the Western District of Kentucky, alleging violations of the Equal Protection\nClause of the Fourteenth Amendment. The District Court found that Jefferson County had asserted\na compelling interest in maintaining racially diverse schools, and that the assignment plan was (in all\nrelevant respects) narrowly tailored to serve that compelling interest. The Sixth Circuit affirmed in a\nper curiam opinion relying upon the reasoning of the District Court, concluding that a written opinion\n\xe2\x80\x9cwould serve no useful purpose.\xe2\x80\x9d We granted certiorari.\n\nII\n{standing discussion omitted}\n\nIII\nA\nIt is well established that when the government distributes burdens or benefits on the basis of\nindividual racial classifications, that action is reviewed under strict scrutiny. Grutter v. Bollinger;\nAdarand. As the Court recently reaffirmed, \xe2\x80\x9c \xe2\x80\x98racial classifications are simply too pernicious to permit\nany but the most exact connection between justification and classification.\xe2\x80\x99 \xe2\x80\x9d Gratz v. Bollinger. In\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 197\n\n\x0corder to satisfy this searching standard of review, the school districts must demonstrate that the use\nof individual racial classifications in the assignment plans here under review is \xe2\x80\x9cnarrowly tailored\xe2\x80\x9d to\nachieve a \xe2\x80\x9ccompelling\xe2\x80\x9d government interest. Adarand.\nWithout attempting in these cases to set forth all the interests a school district might assert, it\nsuffices to note that our prior cases, in evaluating the use of racial classifications in the school\ncontext, have recognized two interests that qualify as compelling. The first is the compelling interest\nof remedying the effects of past intentional discrimination. See Freeman v. Pitts (1992). Yet the Seattle\npublic schools have not shown that they were ever segregated by law, and were not subject to courtordered desegregation decrees. The Jefferson County public schools were previously segregated by\nlaw and were subject to a desegregation decree entered in 1975. In 2000, the District Court that\nentered that decree dissolved it, finding that Jefferson County had \xe2\x80\x9celiminated the vestiges associated\nwith the former policy of segregation and its pernicious effects,\xe2\x80\x9d and thus had achieved \xe2\x80\x9cunitary\xe2\x80\x9d\nstatus. Jefferson County accordingly does not rely upon an interest in remedying the effects of past\nintentional discrimination in defending its present use of race in assigning students.\nNor could it. We have emphasized that the harm being remedied by mandatory desegregation plans is\nthe harm that is traceable to segregation, and that \xe2\x80\x9cthe Constitution is not violated by racial imbalance\nin the schools, without more.\xe2\x80\x9d Milliken v. Bradley (1977). See also Freeman v. Pitts. Once Jefferson\nCounty achieved unitary status, it had remedied the constitutional wrong that allowed race-based\nassignments. Any continued use of race must be justified on some other basis.\nThe second government interest we have recognized as compelling for purposes of strict scrutiny is\nthe interest in diversity in higher education upheld in Grutter. The specific interest found compelling\nin Grutter was student body diversity \xe2\x80\x9cin the context of higher education.\xe2\x80\x9d The diversity interest was\nnot focused on race alone but encompassed \xe2\x80\x9call factors that may contribute to student body diversity.\xe2\x80\x9d\n****\nThe entire gist of the analysis in Grutter was that the admissions program at issue there focused\non each applicant as an individual, and not simply as a member of a particular racial group. The\nclassification of applicants by race upheld in Grutter was only as part of a \xe2\x80\x9chighly individualized,\nholistic review.\xe2\x80\x9d As the Court explained, \xe2\x80\x9c[t]he importance of this individualized consideration in the\ncontext of a race-conscious admissions program is paramount.\xe2\x80\x9d The point of the narrow tailoring\nanalysis in which the Grutter Court engaged was to ensure that the use of racial classifications was\nindeed part of a broader assessment of diversity, and not simply an effort to achieve racial balance,\nwhich the Court explained would be \xe2\x80\x9cpatently unconstitutional.\xe2\x80\x9d\nIn the present cases, by contrast, race is not considered as part of a broader effort to achieve\n\xe2\x80\x9cexposure to widely diverse people, cultures, ideas, and viewpoints;\xe2\x80\x9d race, for some students, is\ndeterminative standing alone. The districts argue that other factors, such as student preferences,\naffect assignment decisions under their plans, but under each plan when race comes into play, it is\ndecisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter;\nit is the factor. Like the University of Michigan undergraduate plan struck down in Gratz, the plans\nhere \xe2\x80\x9cdo not provide for a meaningful individualized review of applicants\xe2\x80\x9d but instead rely on racial\nclassifications in a \xe2\x80\x9cnonindividualized, mechanical\xe2\x80\x9d way.\n198 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cEven when it comes to race, the plans here employ only a limited notion of diversity, viewing race\nexclusively in white/nonwhite terms in Seattle and black/\xe2\x80\x9cother\xe2\x80\x9d terms in Jefferson County. The\nSeattle \xe2\x80\x9cBoard Statement Reaffirming Diversity Rationale\xe2\x80\x9d speaks of the \xe2\x80\x9cinherent educational value\xe2\x80\x9d\nin \xe2\x80\x9c[p]roviding students the opportunity to attend schools with diverse student enrollment.\xe2\x80\x9d But under\nthe Seattle plan, a school with 50 percent Asian-American students and 50 percent white students but\nno African-American, Native-American, or Latino students would qualify as balanced, while a school\nwith 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent\nwhite students would not. It is hard to understand how a plan that could allow these results can be\nviewed as being concerned with achieving enrollment that is \xe2\x80\x9c \xe2\x80\x98broadly diverse,\xe2\x80\x99 \xe2\x80\x9d Grutter. * * * *\nIn upholding the admissions plan in Grutter, though, this Court relied upon considerations unique to\ninstitutions of higher education, noting that in light of \xe2\x80\x9cthe expansive freedoms of speech and thought\nassociated with the university environment, universities occupy a special niche in our constitutional\ntradition.\xe2\x80\x9d See also Bakke (opinion of Powell, J.). The Court explained that \xe2\x80\x9c[c]ontext matters\xe2\x80\x9d in\napplying strict scrutiny, and repeatedly noted that it was addressing the use of race \xe2\x80\x9cin the context\nof higher education.\xe2\x80\x9d Grutter. The Court in Grutter expressly articulated key limitations on its\nholding\xe2\x80\x94defining a specific type of broad-based diversity and noting the unique context of higher\neducation\xe2\x80\x94but these limitations were largely disregarded by the lower courts in extending Grutter\nto uphold race-based assignments in elementary and secondary schools. The present cases are not\ngoverned by Grutter.\n\nB\nPerhaps recognizing that reliance on Grutter cannot sustain their plans, both school districts assert\nadditional interests, distinct from the interest upheld in Grutter, to justify their race-based\nassignments. In briefing and argument before this Court, Seattle contends that its use of race helps\nto reduce racial concentration in schools and to ensure that racially concentrated housing patterns\ndo not prevent nonwhite students from having access to the most desirable schools. Jefferson County\nhas articulated a similar goal, phrasing its interest in terms of educating its students \xe2\x80\x9cin a racially\nintegrated environment.\xe2\x80\x9d Each school district argues that educational and broader socialization\nbenefits flow from a racially diverse learning environment, and each contends that because the\ndiversity they seek is racial diversity\xe2\x80\x94not the broader diversity at issue in Grutter\xe2\x80\x94it makes sense to\npromote that interest directly by relying on race alone.\nThe parties and their amici dispute whether racial diversity in schools in fact has a marked impact on\ntest scores and other objective yardsticks or achieves intangible socialization benefits. The debate is\nnot one we need to resolve, however, because it is clear that the racial classifications employed by the\ndistricts are not narrowly tailored to the goal of achieving the educational and social benefits asserted\nto flow from racial diversity. In design and operation, the plans are directed only to racial balance,\npure and simple, an objective this Court has repeatedly condemned as illegitimate.\nThe plans are tied to each district\xe2\x80\x99s specific racial demographics, rather than to any pedagogic\nconcept of the level of diversity needed to obtain the asserted educational benefits. In Seattle, the\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 199\n\n\x0cdistrict seeks white enrollment of between 31 and 51 percent (within 10 percent of \xe2\x80\x9cthe district\nwhite average\xe2\x80\x9d of 41 percent), and nonwhite enrollment of between 49 and 69 percent (within 10\npercent of \xe2\x80\x9cthe district minority average\xe2\x80\x9d of 59 percent). In Jefferson County, by contrast, the district\nseeks black enrollment of no less than 15 or more than 50 percent, a range designed to be \xe2\x80\x9cequally\nabove and below Black student enrollment systemwide,\xe2\x80\x9d based on the objective of achieving at \xe2\x80\x9call\nschools \xe2\x80\xa6 an African-American enrollment equivalent to the average district-wide African-American\nenrollment\xe2\x80\x9d of 34 percent. In Seattle, then, the benefits of racial diversity require enrollment of at least\n31 percent white students; in Jefferson County, at least 50 percent. There must be at least 15 percent\nnonwhite students under Jefferson County\xe2\x80\x99s plan; in Seattle, more than three times that figure. This\ncomparison makes clear that the racial demographics in each district\xe2\x80\x94whatever they happen to\nbe\xe2\x80\x94drive the required \xe2\x80\x9cdiversity\xe2\x80\x9d numbers. The plans here are not tailored to achieving a degree of\ndiversity necessary to realize the asserted educational benefits; instead the plans are tailored, in the\nwords of Seattle\xe2\x80\x99s Manager of Enrollment Planning, Technical Support, and Demographics, to \xe2\x80\x9cthe goal\nestablished by the school board of attaining a level of diversity within the schools that approximates\nthe district\xe2\x80\x99s overall demographics.\xe2\x80\x9d\nThe districts offer no evidence that the level of racial diversity necessary to achieve the asserted\neducational benefits happens to coincide with the racial demographics of the respective school\ndistricts\xe2\x80\x94or rather the white/nonwhite or black/\xe2\x80\x9cother\xe2\x80\x9d balance of the districts, since that is the\nonly diversity addressed by the plans. Indeed, in its brief Seattle simply assumes that the educational\nbenefits track the racial breakdown of the district. When asked for \xe2\x80\x9ca range of percentage that\nwould be diverse,\xe2\x80\x9d however, Seattle\xe2\x80\x99s expert said it was important to have \xe2\x80\x9csufficient numbers so\nas to avoid students feeling any kind of specter of exceptionality.\xe2\x80\x9d The district did not attempt to\ndefend the proposition that anything outside its range posed the \xe2\x80\x9cspecter of exceptionality.\xe2\x80\x9d Nor did\nit demonstrate in any way how the educational and social benefits of racial diversity or avoidance\nof racial isolation are more likely to be achieved at a school that is 50 percent white and 50 percent\nAsian-American, which would qualify as diverse under Seattle\xe2\x80\x99s plan, than at a school that is 30\npercent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white,\nwhich under Seattle\xe2\x80\x99s definition would be racially concentrated.\nSimilarly, Jefferson County\xe2\x80\x99s expert referred to the importance of having \xe2\x80\x9cat least 20 percent\xe2\x80\x9d minority\ngroup representation for the group \xe2\x80\x9cto be visible enough to make a difference,\xe2\x80\x9d and noted that \xe2\x80\x9csmall\nisolated minority groups in a school are not likely to have a strong effect on the overall school.\xe2\x80\x9d\nThe Jefferson County plan, however, is based on a goal of replicating at each school \xe2\x80\x9can AfricanAmerican enrollment equivalent to the average district-wide African-American enrollment.\xe2\x80\x9d Joshua\nMcDonald\xe2\x80\x99s requested transfer was denied because his race was listed as \xe2\x80\x9cother\xe2\x80\x9d rather than black,\nand allowing the transfer would have had an adverse effect on the racial guideline compliance of\nYoung Elementary, the school he sought to leave. At the time, however, Young Elementary was 46.8\npercent black. The transfer might have had an adverse effect on the effort to approach district-wide\nracial proportionality at Young, but it had nothing to do with preventing either the black or \xe2\x80\x9cother\xe2\x80\x9d\ngroup from becoming \xe2\x80\x9csmall\xe2\x80\x9d or \xe2\x80\x9cisolated\xe2\x80\x9d at Young.\nIn fact, in each case the extreme measure of relying on race in assignments is unnecessary to achieve\nthe stated goals, even as defined by the districts. For example, at Franklin High School in Seattle,\n200 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cthe racial tiebreaker was applied because nonwhite enrollment exceeded 69 percent, and resulted\nin an incoming ninth-grade class in 2000\xe2\x80\x932001 that was 30.3 percent Asian-American, 21.9 percent\nAfrican-American, 6.8 percent Latino, 0.5 percent Native-American, and 40.5 percent Caucasian.\nWithout the racial tiebreaker, the class would have been 39.6 percent Asian-American, 30.2 percent\nAfrican-American, 8.3 percent Latino, 1.1 percent Native-American, and 20.8 percent Caucasian. When\nthe actual racial breakdown is considered, enrolling students without regard to their race yields a\nsubstantially diverse student body under any definition of diversity.\n* * * *Accepting racial balancing as a compelling state interest would justify the imposition of racial\nproportionality throughout American society, contrary to our repeated recognition that \xe2\x80\x9c[a]t the heart\nof the Constitution\xe2\x80\x99s guarantee of equal protection lies the simple command that the Government\nmust treat citizens as individuals, not as simply components of a racial, religious, sexual or national\nclass.\xe2\x80\x9d Allowing racial balancing as a compelling end in itself would \xe2\x80\x9ceffectively assur[e] that race\nwill always be relevant in American life, and that the \xe2\x80\x98ultimate goal\xe2\x80\x99 of \xe2\x80\x98eliminating entirely from\ngovernmental decisionmaking such irrelevant factors as a human being\xe2\x80\x99s race\xe2\x80\x99 will never be achieved.\xe2\x80\x9d\nCroson, (plurality opinion of O\xe2\x80\x99Connor, J.). An interest \xe2\x80\x9clinked to nothing other than proportional\nrepresentation of various races \xe2\x80\xa6 would support indefinite use of racial classifications, employed first\nto obtain the appropriate mixture of racial views and then to ensure that the [program] continues to\nreflect that mixture.\xe2\x80\x9d\n* * * *The principle that racial balancing is not permitted is one of substance, not semantics. Racial\nbalancing is not transformed from \xe2\x80\x9cpatently unconstitutional\xe2\x80\x9d to a compelling state interest simply by\nrelabeling it \xe2\x80\x9cracial diversity.\xe2\x80\x9d While the school districts use various verbal formulations to describe\nthe interest they seek to promote\xe2\x80\x94racial diversity, avoidance of racial isolation, racial\nintegration\xe2\x80\x94they offer no definition of the interest that suggests it differs from racial balance. (\xe2\x80\x9cQ.\nWhat\xe2\x80\x99s your understanding of when a school suffers from racial isolation? A. I don\xe2\x80\x99t have a definition\nfor that\xe2\x80\x9d); (\xe2\x80\x9cI don\xe2\x80\x99t think we\xe2\x80\x99ve ever sat down and said, \xe2\x80\x98Define racially concentrated school exactly\non point in quantitative terms.\xe2\x80\x99 I don\xe2\x80\x99t think we\xe2\x80\x99ve ever had that conversation\xe2\x80\x9d); (\xe2\x80\x9cQ. How does the\nJefferson County School Board define diversity \xe2\x80\xa6?\xe2\x80\x9d \xe2\x80\x9cA. Well, we want to have the schools that make up\nthe percentage of students of the population\xe2\x80\x9d).\nJefferson County phrases its interest as \xe2\x80\x9cracial integration,\xe2\x80\x9d but integration certainly does not require\nthe sort of racial proportionality reflected in its plan. Even in the context of mandatory desegregation,\nwe have stressed that racial proportionality is not required. * * * *\nHowever closely related race-based assignments may be to achieving racial balance, that itself cannot\nbe the goal, whether labeled \xe2\x80\x9cracial diversity\xe2\x80\x9d or anything else. To the extent the objective is sufficient\ndiversity so that students see fellow students as individuals rather than solely as members of a racial\ngroup, using means that treat students solely as members of a racial group is fundamentally at crosspurposes with that end.\n\nC\nThe districts assert, as they must, that the way in which they have employed individual racial\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 201\n\n\x0cclassifications is necessary to achieve their stated ends. The minimal effect these classifications\nhave on student assignments, however, suggests that other means would be effective. Seattle\xe2\x80\x99s racial\ntiebreaker results, in the end, only in shifting a small number of students between schools.\nApproximately 307 student assignments were affected by the racial tiebreaker in 2000\xe2\x80\x932001; the\ndistrict was able to track the enrollment status of 293 of these students. Of these, 209 were assigned\nto a school that was one of their choices, 87 of whom were assigned to the same school to which\nthey would have been assigned without the racial tiebreaker. Eighty-four students were assigned to\nschools that they did not list as a choice, but 29 of those students would have been assigned to their\nrespective school without the racial tiebreaker, and 3 were able to attend one of the oversubscribed\nschools due to waitlist and capacity adjustments. In over one-third of the assignments affected by the\nracial tiebreaker, then, the use of race in the end made no difference, and the district could identify\nonly 52 students who were ultimately affected adversely by the racial tiebreaker in that it resulted in\nassignment to a school they had not listed as a preference and to which they would not otherwise\nhave been assigned. * * * *\nSimilarly, Jefferson County\xe2\x80\x99s use of racial classifications has only a minimal effect on the assignment\nof students.* * * *\nWhile we do not suggest that greater use of race would be preferable, the minimal impact of the\ndistricts\xe2\x80\x99 racial classifications on school enrollment casts doubt on the necessity of using racial\nclassifications. In Grutter, the consideration of race was viewed as indispensable in more than tripling\nminority representation at the law school\xe2\x80\x94from 4 to 14.5 percent. Here the most Jefferson County\nitself claims is that \xe2\x80\x9cbecause the guidelines provide a firm definition of the Board\xe2\x80\x99s goal of racially\nintegrated schools, they \xe2\x80\x98provide administrators with the authority to facilitate, negotiate and\ncollaborate with principals and staff to maintain schools within the 15\xe2\x80\x9350% range.\xe2\x80\x99 \xe2\x80\x9d Classifying and\nassigning schoolchildren according to a binary conception of race is an extreme approach in light of\nour precedents and our Nation\xe2\x80\x99s history of using race in public schools, and requires more than such\nan amorphous end to justify it. * * * *\n\nIV\nJustice Breyer\xe2\x80\x99s dissent takes a different approach to these cases, one that fails to ground the\nresult it would reach in law. Instead, it selectively relies on inapplicable precedent and even dicta\nwhile dismissing contrary holdings, alters and misapplies our well-established legal framework for\nassessing equal protection challenges to express racial classifications, and greatly exaggerates the\nconsequences of today\xe2\x80\x99s decision. * * * *\nAt the same time it relies on inapplicable desegregation cases, misstatements of admitted dicta, and\nother noncontrolling pronouncements, Justice Breyer\xe2\x80\x99s dissent candidly dismisses the significance of\nthis Court\xe2\x80\x99s repeated holdings that all racial classifications must be reviewed under strict scrutiny,\narguing that a different standard of review should be applied because the districts use race for\nbeneficent rather than malicious purposes.\nThis Court has recently reiterated, however, that \xe2\x80\x9c \xe2\x80\x98all racial classifications [imposed by\n202 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cgovernment] \xe2\x80\xa6 must be analyzed by a reviewing court under strict scrutiny.\xe2\x80\x99 \xe2\x80\x9d (quoting Adarand). See\nalso Grutter (\xe2\x80\x9c[G]overnmental action based on race\xe2\x80\x94a group classification long recognized as in most\ncircumstances irrelevant and therefore prohibited\xe2\x80\x94should be subjected to detailed judicial inquiry\xe2\x80\x9d\n(internal quotation marks and emphasis omitted)). Justice Breyer nonetheless relies on the good\nintentions and motives of the school districts, stating that he has found \xe2\x80\x9cno case that \xe2\x80\xa6 repudiated\nthis constitutional asymmetry between that which seeks to exclude and that which seeks to include\nmembers of minority races.\xe2\x80\x9d We have found many. * * * *\nThis argument that different rules should govern racial classifications designed to include rather than\nexclude is not new; it has been repeatedly pressed in the past, see, e.g., Gratz (Breyer, J., concurring\nin judgment) and (Ginsburg, J., dissenting); Adarand (Stevens, J., dissenting); Wygant, (Stevens, J.,\ndissenting), and has been repeatedly rejected. See also Bakke (opinion of Powell, J.) (rejecting argument\nthat strict scrutiny should be applied only to classifications that disadvantage minorities, stating\n\xe2\x80\x9c[r]acial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting\njudicial examination\xe2\x80\x9d).\n* * * Justice Breyer\xe2\x80\x99s position comes down to a familiar claim: The end justifies the means. He admits\nthat \xe2\x80\x9cthere is a cost in applying \xe2\x80\x98a state-mandated racial label,\xe2\x80\x99 \xe2\x80\x9d but he is confident that the cost\nis worth paying. Our established strict scrutiny test for racial classifications, however, insists on\n\xe2\x80\x9cdetailed examination, both as to ends and as to means.\xe2\x80\x9d Adarand (emphasis added). Simply because\nthe school districts may seek a worthy goal does not mean they are free to discriminate on the basis\nof race to achieve it, or that their racial classifications should be subject to less exacting scrutiny.\nDespite his argument that these cases should be evaluated under a \xe2\x80\x9cstandard of review that is not\n\xe2\x80\x98strict\xe2\x80\x99 in the traditional sense of that word,\xe2\x80\x9d Justice Breyer still purports to apply strict scrutiny to\nthese cases. It is evident, however, that Justice Breyer\xe2\x80\x99s brand of narrow tailoring is quite unlike\nanything found in our precedents. * * * *\nJustice Breyer repeatedly urges deference to local school boards on these issues. Such deference \xe2\x80\x9cis\nfundamentally at odds with our equal protection jurisprudence. We put the burden on state actors to\ndemonstrate that their race-based policies are justified.\xe2\x80\x9d\nJustice Breyer\xe2\x80\x99s dissent ends on an unjustified note of alarm. It predicts that today\xe2\x80\x99s decision\n\xe2\x80\x9cthreaten[s]\xe2\x80\x9d the validity of \xe2\x80\x9c[h]undreds of state and federal statutes and regulations.\xe2\x80\x9d But the examples\nthe dissent mentions\xe2\x80\x94for example, a provision of the No Child Left Behind Act that requires States\nto set measurable objectives to track the achievement of students from major racial and ethnic\ngroups\xe2\x80\x94have nothing to do with the pertinent issues in these cases.\nJustice Breyer also suggests that other means for achieving greater racial diversity in schools are\nnecessarily unconstitutional if the racial classifications at issue in these cases cannot survive strict\nscrutiny. These other means\xe2\x80\x94e.g., where to construct new schools, how to allocate resources among\nschools, and which academic offerings to provide to attract students to certain schools\xe2\x80\x94implicate\ndifferent considerations than the explicit racial classifications at issue in these cases, and we express\nno opinion on their validity\xe2\x80\x94not even in dicta. Rather, we employ the familiar and well-established\nanalytic approach of strict scrutiny to evaluate the plans at issue today, an approach that in no\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 203\n\n\x0cway warrants the dissent\xe2\x80\x99s cataclysmic concerns. Under that approach, the school districts have not\ncarried their burden of showing that the ends they seek justify the particular extreme means they\nhave chosen\xe2\x80\x94classifying individual students on the basis of their race and discriminating among them\non that basis.\n***\nIf the need for the racial classifications embraced by the school districts is unclear, even on the\ndistricts\xe2\x80\x99 own terms, the costs are undeniable. \xe2\x80\x9c[D]istinctions between citizens solely because of their\nancestry are by their very nature odious to a free people whose institutions are founded upon the\ndoctrine of equality.\xe2\x80\x9d Adarand (internal quotation marks omitted). Government action dividing us by\nrace is inherently suspect because such classifications promote \xe2\x80\x9cnotions of racial inferiority and lead\nto a politics of racial hostility,\xe2\x80\x9d Croson, \xe2\x80\x9creinforce the belief, held by too many for too much of our\nhistory, that individuals should be judged by the color of their skin,\xe2\x80\x9d Shaw v. Reno (1993), and \xe2\x80\x9cendorse\nrace-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an\nescalation of racial hostility and conflict.\xe2\x80\x9d Metro Broadcasting (O\xe2\x80\x99Connor, J., dissenting). As the Court\nexplained in Rice v. Cayetano (2000), \xe2\x80\x9c[o]ne of the principal reasons race is treated as a forbidden\nclassification is that it demeans the dignity and worth of a person to be judged by ancestry instead of\nby his or her own merit and essential qualities.\xe2\x80\x9d\nAll this is true enough in the contexts in which these statements were made\xe2\x80\x94government contracting,\nvoting districts, allocation of broadcast licenses, and electing state officers\xe2\x80\x94but when it comes\nto using race to assign children to schools, history will be heard. In Brown v. Board of Education\n(1954) (Brown I), we held that segregation deprived black children of equal educational opportunities\nregardless of whether school facilities and other tangible factors were equal, because government\nclassification and separation on grounds of race themselves denoted inferiority. It was not the\ninequality of the facilities but the fact of legally separating children on the basis of race on which the\nCourt relied to find a constitutional violation in 1954. See id., at 494 (\xe2\x80\x9c\xe2\x80\x98The impact [of segregation]\nis greater when it has the sanction of the law\xe2\x80\x99 \xe2\x80\x9d). The next Term, we accordingly stated that \xe2\x80\x9cfull\ncompliance\xe2\x80\x9d with Brown I required school districts \xe2\x80\x9cto achieve a system of determining admission to\nthe public schools on a nonracial basis.\xe2\x80\x9d Brown II (emphasis added).\nThe parties and their amici debate which side is more faithful to the heritage of Brown, but the\nposition of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: \xe2\x80\x9c[T]he\nFourteenth Amendment prevents states from according differential treatment to American children\non the basis of their color or race.\xe2\x80\x9d Brief for Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10\non Reargument in Brown I (Summary of Argument). What do the racial classifications at issue here do,\nif not accord differential treatment on the basis of race? As counsel who appeared before this Court\nfor the plaintiffs in Brown put it: \xe2\x80\x9cWe have one fundamental contention which we will seek to develop\nin the course of this argument, and that contention is that no State has any authority under the\nequal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational\nopportunities among its citizens.\xe2\x80\x9d Tr. of Oral Arg. in Brown I, p. 7 (Robert L. Carter, Dec. 9, 1952).\nThere is no ambiguity in that statement. And it was that position that prevailed in this Court, which\nemphasized in its remedial opinion that what was \xe2\x80\x9c[a]t stake is the personal interest of the plaintiffs\n204 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cin admission to public schools as soon as practicable on a nondiscriminatory basis,\xe2\x80\x9d and what was\nrequired was \xe2\x80\x9cdetermining admission to the public schools on a nonracial basis.\xe2\x80\x9d Brown II (emphasis\nadded). What do the racial classifications do in these cases, if not determine admission to a public\nschool on a racial basis? Before Brown, schoolchildren were told where they could and could not go to\nschool based on the color of their skin. The school districts in these cases have not carried the heavy\nburden of demonstrating that we should allow this once again\xe2\x80\x94even for very different reasons. For\nschools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges\nof past segregation, such as Jefferson County, the way \xe2\x80\x9cto achieve a system of determining admission\nto the public schools on a nonracial basis,\xe2\x80\x9d Brown II, is to stop assigning students on a racial basis. The\nway to stop discrimination on the basis of race is to stop discriminating on the basis of race.\nThe judgments of the Courts of Appeals for the Sixth and Ninth Circuits are reversed, and the cases are\nremanded for further proceedings.\nJUSTICE KENNEDY, CONCURRING IN PART AND CONCURRING IN THE JUDGMENT.\nThe Nation\xe2\x80\x99s schools strive to teach that our strength comes from people of different races, creeds,\nand cultures uniting in commitment to the freedom of all. In these cases two school districts in\ndifferent parts of the country seek to teach that principle by having classrooms that reflect the\nracial makeup of the surrounding community. That the school districts consider these plans to be\nnecessary should remind us our highest aspirations are yet unfulfilled. But the solutions mandated\nby these school districts must themselves be lawful. To make race matter now so that it might\nnot matter later may entrench the very prejudices we seek to overcome. In my view the statemandated racial classifications at issue, official labels proclaiming the race of all persons in a broad\nclass of citizens\xe2\x80\x94elementary school students in one case, high school students in another\xe2\x80\x94are\nunconstitutional as the cases now come to us.\nI agree with The Chief Justice that we have jurisdiction to decide the cases before us and join Parts\nI and II of the Court\xe2\x80\x99s opinion. I also join Parts III\xe2\x80\x93A and III\xe2\x80\x93C for reasons provided below. My views\ndo not allow me to join the balance of the opinion by The Chief Justice, which seems to me to be\ninconsistent in both its approach and its implications with the history, meaning, and reach of the\nEqual Protection Clause.\n\nI\n{omitted}\n{Justice Kennedy does state that \xe2\x80\x9cDiversity, depending on its meaning and definition, is a compelling\neducational goal a school district may pursue, but finds the school districts\xe2\x80\x99 use of racial categories\nare not justified and are not narrowly tailored.}\n\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 205\n\n\x0cII\nOur Nation from the inception has sought to preserve and expand the promise of liberty and equality\non which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity.\nYet our tradition is to go beyond present achievements, however significant, and to recognize and\nconfront the flaws and injustices that remain. This is especially true when we seek assurance that\nopportunity is not denied on account of race. The enduring hope is that race should not matter; the\nreality is that too often it does.\nThis is by way of preface to my respectful submission that parts of the opinion by The Chief Justice\nimply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view,\nit may be taken into account. The plurality opinion is too dismissive of the legitimate interest\ngovernment has in ensuring all people have equal opportunity regardless of their race. The plurality\xe2\x80\x99s\npostulate that \xe2\x80\x9c[t]he way to stop discrimination on the basis of race is to stop discriminating on the\nbasis of race,\xe2\x80\x9d is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of\nEducation (1954) should teach us that the problem before us defies so easy a solution. School districts\ncan seek to reach Brown\xe2\x80\x99s objective of equal educational opportunity. The plurality opinion is at least\nopen to the interpretation that the Constitution requires school districts to ignore the problem of de\nfacto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion\nsuggests the Constitution mandates that state and local school authorities must accept the status quo\nof racial isolation in schools, it is, in my view, profoundly mistaken.\nThe statement by Justice Harlan that \xe2\x80\x9c[o]ur Constitution is color-blind\xe2\x80\x9d was most certainly justified\nin the context of his dissent in Plessy v. Ferguson (1896). The Court\xe2\x80\x99s decision in that case was a\ngrievous error it took far too long to overrule. Plessy, of course, concerned official classification by\nrace applicable to all persons who sought to use railway carriages. And, as an aspiration, Justice\nHarlan\xe2\x80\x99s axiom must command our assent. In the real world, it is regrettable to say, it cannot be a\nuniversal constitutional principle.\nIn the administration of public schools by the state and local authorities it is permissible to consider\nthe racial makeup of schools and to adopt general policies to encourage a diverse student body, one\naspect of which is its racial composition. Cf. Grutter v. Bollinger (2003); id (Kennedy, J., dissenting).\nIf school authorities are concerned that the student-body compositions of certain schools interfere\nwith the objective of offering an equal educational opportunity to all of their students, they are free to\ndevise race-conscious measures to address the problem in a general way and without treating each\nstudent in different fashion solely on the basis of a systematic, individual typing by race.\nSchool boards may pursue the goal of bringing together students of diverse backgrounds and races\nthrough other means, including strategic site selection of new schools; drawing attendance zones\nwith general recognition of the demographics of neighborhoods; allocating resources for special\nprograms; recruiting students and faculty in a targeted fashion; and tracking enrollments,\nperformance, and other statistics by race. These mechanisms are race conscious but do not lead to\ndifferent treatment based on a classification that tells each student he or she is to be defined by\nrace, so it is unlikely any of them would demand strict scrutiny to be found permissible. Executive\n206 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cand legislative branches, which for generations now have considered these types of policies and\nprocedures, should be permitted to employ them with candor and with confidence that a\nconstitutional violation does not occur whenever a decisionmaker considers the impact a given\napproach might have on students of different races. Assigning to each student a personal designation\naccording to a crude system of individual racial classifications is quite a different matter; and the legal\nanalysis changes accordingly.\nEach respondent has asserted that its assignment of individual students by race is permissible because\nthere is no other way to avoid racial isolation in the school districts. Yet, as explained, each has failed\nto provide the support necessary for that proposition. And individual racial classifications employed\nin this manner may be considered legitimate only if they are a last resort to achieve a compelling\ninterest.\nIn the cases before us it is noteworthy that the number of students whose assignment depends on\nexpress racial classifications is limited. I join Part III\xe2\x80\x93C of the Court\xe2\x80\x99s opinion because I agree that\nin the context of these plans, the small number of assignments affected suggests that the schools\ncould have achieved their stated ends through different means. These include the facially raceneutral means set forth above or, if necessary, a more nuanced, individual evaluation of school needs\nand student characteristics that might include race as a component. The latter approach would be\ninformed by Grutter, though of course the criteria relevant to student placement would differ based\non the age of the students, the needs of the parents, and the role of the schools.\n\nIII\n{discussion of Justice Breyer\xe2\x80\x99s dissent omitted}\n***\nThis Nation has a moral and ethical obligation to fulfill its historic commitment to creating an\nintegrated society that ensures equal opportunity for all of its children. A compelling interest exists in\navoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose\nto pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student\npopulation. Race may be one component of that diversity, but other demographic factors, plus special\ntalents and needs, should also be considered. What the government is not permitted to do, absent\na showing of necessity not made here, is to classify every student on the basis of race and to assign\neach of them to schools based on that classification. Crude measures of this sort threaten to reduce\nchildren to racial chits valued and traded according to one school\xe2\x80\x99s supply and another\xe2\x80\x99s demand.\nThat statement, to be sure, invites this response: A sense of stigma may already become the fate of\nthose separated out by circumstances beyond their immediate control. But to this the replication\nmust be: Even so, measures other than differential treatment based on racial typing of individuals first\nmust be exhausted.\nThe decision today should not prevent school districts from continuing the important work of\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 207\n\n\x0cbringing together students of different racial, ethnic, and economic backgrounds. Due to a variety\nof factors\xe2\x80\x94some influenced by government, some not\xe2\x80\x94neighborhoods in our communities do not\nreflect the diversity of our Nation as a whole. Those entrusted with directing our public schools can\nbring to bear the creativity of experts, parents, administrators, and other concerned citizens to find\na way to achieve the compelling interests they face without resorting to widespread governmental\nallocation of benefits and burdens on the basis of racial classifications.\nWith this explanation I concur in the judgment of the Court.\nSTEVENS, J., FILED A DISSENTING OPINION.\nWhile I join Justice Breyer\xe2\x80\x99s eloquent and unanswerable dissent in its entirety, it is appropriate to add\nthese words.\nThere is a cruel irony in The Chief Justice\xe2\x80\x99s reliance on our decision in Brown v. Board of Education.\nThe first sentence in the concluding paragraph of his opinion states: \xe2\x80\x9cBefore Brown, schoolchildren\nwere told where they could and could not go to school based on the color of their skin.\xe2\x80\x9d This sentence\nreminds me of Anatole France\xe2\x80\x99s observation: \xe2\x80\x9c[T]he majestic equality of the la[w], forbid[s] rich and\npoor alike to sleep under bridges, to beg in the streets, and to steal their bread.\xe2\x80\x9d The Chief Justice\nfails to note that it was only black schoolchildren who were so ordered; indeed, the history books do\nnot tell stories of white children struggling to attend black schools. In this and other ways, The Chief\nJustice rewrites the history of one of this Court\xe2\x80\x99s most important decisions. * * * *\nBREYER, J., FILED A DISSENTING OPINION, IN WHICH STEVENS, SOUTER, AND GINSBURG, JJ., JOINED.\nThese cases consider the longstanding efforts of two local school boards to integrate their public\nschools. The school board plans before us resemble many others adopted in the last 50 years by\nprimary and secondary schools throughout the Nation. All of those plans represent local efforts\nto bring about the kind of racially integrated education that Brown v. Board of Education long\nago promised\xe2\x80\x94efforts that this Court has repeatedly required, permitted, and encouraged local\nauthorities to undertake. This Court has recognized that the public interests at stake in such cases are\n\xe2\x80\x9ccompelling.\xe2\x80\x9d We have approved of \xe2\x80\x9cnarrowly tailored\xe2\x80\x9d plans that are no less race-conscious than the\nplans before us. And we have understood that the Constitution permits local communities to adopt\ndesegregation plans even where it does not require them to do so.\nThe plurality pays inadequate attention to this law, to past opinions\xe2\x80\x99 rationales, their language, and\nthe contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In\ndoing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal\nrules that will obstruct efforts by state and local governments to deal effectively with the growing\nresegregation of public schools, it threatens to substitute for present calm a disruptive round of racerelated litigation, and it undermines Brown\xe2\x80\x99s promise of integrated primary and secondary education\nthat local communities have sought to make a reality. This cannot be justified in the name of the Equal\nProtection Clause. * * * *\n\n208 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=35#h5p-69\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=35#h5p-70\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=35#h5p-71\n\nFisher v. University of Texas at Austin (Fisher I)\n570 U.S. ___ (2013)\nKENNEDY, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ROBERTS, C. J., AND SCALIA, THOMAS, BREYER, ALITO,\nAND SOTOMAYOR, JJ., JOINED. SCALIA, J., AND THOMAS, J., FILED CONCURRING OPINIONS. GINSBURG, J., FILED A\nDISSENTING OPINION. KAGAN, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE.\nJUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT.\n\nI\nA\nLocated in Austin, Texas, on the most renowned campus of the Texas state university system, the\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 209\n\n\x0cUniversity is one of the leading institutions of higher education in the Nation. Admission is prized and\ncompetitive. In 2008, when petitioner sought admission to the University\xe2\x80\x99s entering class, she was 1 of\n29,501 applicants. From this group 12,843 were admitted, and 6,715 accepted and enrolled. Petitioner\nwas denied admission.\nIn recent years the University has used three different programs to evaluate candidates for admission.\nThe first is the program it used for some years before 1997, when the University considered two\nfactors: a numerical score reflecting an applicant\xe2\x80\x99s test scores and academic performance in high\nschool (Academic Index or AI), and the applicant\xe2\x80\x99s race. In 1996, this system was held unconstitutional\nby the United States Court of Appeals for the Fifth Circuit. It ruled the University\xe2\x80\x99s consideration\nof race violated the Equal Protection Clause because it did not further any compelling government\ninterest. Hopwood v. Texas.\nThe second program was adopted to comply with the Hopwood decision. The University stopped\nconsidering race in admissions and substituted instead a new holistic metric of a candidate\xe2\x80\x99s potential\ncontribution to the University, to be used in conjunction with the Academic Index. This \xe2\x80\x9cPersonal\nAchievement Index\xe2\x80\x9d (PAI) measures a student\xe2\x80\x99s leadership and work experience, awards,\nextracurricular activities, community service, and other special circumstances that give insight into\na student\xe2\x80\x99s background. These included growing up in a single-parent home, speaking a language\nother than English at home, significant family responsibilities assumed by the applicant, and the\ngeneral socioeconomic condition of the student\xe2\x80\x99s family. Seeking to address the decline in minority\nenrollment after Hopwood, the University also expanded its outreach programs.\nThe Texas State Legislature also responded to the Hopwood decision. It enacted a measure known\nas the Top Ten Percent Law * * * * [which] grants automatic admission to any public state college,\nincluding the University, to all students in the top 10% of their class at high schools in Texas that\ncomply with certain standards.\nThe University\xe2\x80\x99s revised admissions process, coupled with the operation of the Top Ten Percent Law,\nresulted in a more racially diverse environment at the University. Before the admissions program at\nissue in this case, in the last year under the post-Hopwood AI/PAI system that did not consider race,\nthe entering class was 4.5% African-American and 16.9% Hispanic. This is in contrast with the 1996\npre-Hopwood and Top Ten Percent regime, when race was explicitly considered, and the University\xe2\x80\x99s\nentering freshman class was 4.1% African-American and 14.5% Hispanic.\nFollowing this Court\xe2\x80\x99s decisions in Grutter v. Bollinger and Gratz v. Bollinger, the University adopted\na third admissions program, the 2004 program in which the University reverted to explicit\nconsideration of race. This is the program here at issue. In Grutter, the Court upheld the use of\nrace as one of many \xe2\x80\x9cplus factors\xe2\x80\x9d in an admissions program that considered the overall individual\ncontribution of each candidate. In Gratz, by contrast, the Court held unconstitutional Michigan\xe2\x80\x99s\nundergraduate admissions program, which automatically awarded points to applicants from certain\nracial minorities.\nThe University\xe2\x80\x99s plan to resume race-conscious admissions was given formal expression in June 2004\nin an internal document entitled Proposal to Consider Race and Ethnicity in Admissions (Proposal).\n210 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cThe Proposal relied in substantial part on a study of a subset of undergraduate classes containing\nbetween 5 and 24 students. It showed that few of these classes had significant enrollment by members\nof racial minorities. In addition the Proposal relied on what it called \xe2\x80\x9canecdotal\xe2\x80\x9d reports from students\nregarding their \xe2\x80\x9cinteraction in the classroom.\xe2\x80\x9d The Proposal concluded that the University lacked a\n\xe2\x80\x9ccritical mass\xe2\x80\x9d of minority students and that to remedy the deficiency it was necessary to give explicit\nconsideration to race in the undergraduate admissions program.\nTo implement the Proposal the University included a student\xe2\x80\x99s race as a component of the PAI score,\nbeginning with applicants in the fall of 2004. The University asks students to classify themselves from\namong five predefined racial categories on the application. Race is not assigned an explicit numerical\nvalue, but it is undisputed that race is a meaningful factor.\nOnce applications have been scored, they are plotted on a grid with the Academic Index on the x-axis\nand the Personal Achievement Index on the y-axis. On that grid students are assigned to so-called\ncells based on their individual scores. All students in the cells falling above a certain line are admitted.\nAll students below the line are not. Each college\xe2\x80\x94such as Liberal Arts or Engineering\xe2\x80\x94admits students\nseparately. So a student is considered initially for her first-choice college, then for her second choice,\nand finally for general admission as an undeclared major.\nPetitioner applied for admission to the University\xe2\x80\x99s 2008 entering class and was rejected. She sued\nthe University and various University officials in the United States District Court for the Western\nDistrict of Texas. She alleged that the University\xe2\x80\x99s consideration of race in admissions violated the\nEqual Protection Clause. The parties cross-moved for summary judgment. The District Court granted\nsummary judgment to the University. The United States Court of Appeals for the Fifth Circuit\naffirmed. It held that Grutter required courts to give substantial deference to the University, both in\nthe definition of the compelling interest in diversity\xe2\x80\x99s benefits and in deciding whether its specific\nplan was narrowly tailored to achieve its stated goal. Applying that standard, the court upheld the\nUniversity\xe2\x80\x99s admissions plan.\nOver the dissent of seven judges, the Court of Appeals denied petitioner\xe2\x80\x99s request for rehearing en\nbanc. Petitioner sought a writ of certiorari. The writ was granted.\n\nB\nAmong the Court\xe2\x80\x99s cases involving racial classifications in education, there are three decisions that\ndirectly address the question of considering racial minority status as a positive or favorable factor in a\nuniversity\xe2\x80\x99s admissions process, with the goal of achieving the educational benefits of a more diverse\nstudent body: Bakke; Gratz; and Grutter. We take those cases as given for purposes of deciding this\ncase.\nWe begin with the principal opinion authored by Justice Powell in Bakke. In Bakke, the Court\nconsidered a system used by the medical school of the University of California at Davis. From an\nentering class of 100 students the school had set aside 16 seats for minority applicants. In holding\nthis program impermissible under the Equal Protection Clause Justice Powell\xe2\x80\x99s opinion stated certain\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 211\n\n\x0cbasic premises. First, \xe2\x80\x9cdecisions based on race or ethnic origin by faculties and administrations of\nstate universities are reviewable under the Fourteenth Amendment.\xe2\x80\x9d The principle of equal protection\nadmits no \xe2\x80\x9cartificial line of a \xe2\x80\x98two-class theory\xe2\x80\x99 \xe2\x80\x9d that \xe2\x80\x9cpermits the recognition of special wards entitled\nto a degree of protection greater than that accorded others.\xe2\x80\x9d It is therefore irrelevant that a system of\nracial preferences in admissions may seem benign. Any racial classification must meet strict scrutiny,\nfor when government decisions \xe2\x80\x9ctouch upon an individual\xe2\x80\x99s race or ethnic background, he is entitled\nto a judicial determination that the burden he is asked to bear on that basis is precisely tailored to\nserve a compelling governmental interest.\xe2\x80\x9d\nNext, Justice Powell identified one compelling interest that could justify the consideration of race:\nthe interest in the educational benefits that flow from a diverse student body. Redressing past\ndiscrimination could not serve as a compelling interest, because a university\xe2\x80\x99s \xe2\x80\x9cbroad mission [of]\neducation\xe2\x80\x9d is incompatible with making the \xe2\x80\x9cjudicial, legislative, or administrative findings of\nconstitutional or statutory violations\xe2\x80\x9d necessary to justify remedial racial classification.\nThe attainment of a diverse student body, by contrast, serves values beyond race alone, including\nenhanced class-room dialogue and the lessening of racial isolation and stereotypes. The academic\nmission of a university is \xe2\x80\x9ca special concern of the First Amendment.\xe2\x80\x9d Part of \xe2\x80\x9c \xe2\x80\x98the business of a\nuniversity [is] to provide that atmosphere which is most conducive to speculation, experiment, and\ncreation,\xe2\x80\x99 \xe2\x80\x9d and this in turn leads to the question of \xe2\x80\x9c \xe2\x80\x98who may be admitted to study.\xe2\x80\x99 \xe2\x80\x9d\nJustice Powell\xe2\x80\x99s central point, however, was that this interest in securing diversity\xe2\x80\x99s benefits, although\na permissible objective, is complex. \xe2\x80\x9cIt is not an interest in simple ethnic diversity, in which a specified\npercentage of the student body is in effect guaranteed to be members of selected ethnic groups, with\nthe remaining percentage an undifferentiated aggregation of students. The diversity that furthers\na compelling state interest encompasses a far broader array of qualifications and characteristics of\nwhich racial or ethnic origin is but a single though important element.\xe2\x80\x9d\nIn Gratz and Grutter the Court endorsed the precepts stated by Justice Powell. In Grutter, the Court\nreaffirmed his conclusion that obtaining the educational benefits of \xe2\x80\x9cstudent body diversity is a\ncompelling state interest that can justify the use of race in university admissions.\xe2\x80\x9d\nAs Gratz and Grutter observed, however, this follows only if a clear precondition is met: The particular\nadmissions process used for this objective is subject to judicial review. Race may not be considered\nunless the admissions process can withstand strict scrutiny. \xe2\x80\x9cNothing in Justice Powell\xe2\x80\x99s opinion in\nBakke signaled that a university may employ whatever means it desires to achieve the stated goal of\ndiversity without regard to the limits imposed by our strict scrutiny analysis.\xe2\x80\x9d Gratz. \xe2\x80\x9cTo be narrowly\ntailored, a race-conscious admissions program cannot use a quota system,\xe2\x80\x9d Grutter, but instead must\n\xe2\x80\x9cremain flexible enough to ensure that each applicant is evaluated as an individual and not in a\nway that makes an applicant\xe2\x80\x99s race or ethnicity the defining feature of his or her application.\xe2\x80\x9d Strict\nscrutiny requires the university to demonstrate with clarity that its \xe2\x80\x9cpurpose or interest is both\nconstitutionally permissible and substantial, and that its use of the classification is necessary . . . to\nthe accomplishment of its purpose.\xe2\x80\x9d Bakke (opinion of Powell, J.).\nWhile these are the cases that most specifically address the central issue in this case, additional\n212 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cguidance may be found in the Court\xe2\x80\x99s broader equal protection jurisprudence which applies in this\ncontext. \xe2\x80\x9cDistinctions between citizens solely because of their ancestry are by their very nature\nodious to a free people,\xe2\x80\x9d and therefore \xe2\x80\x9care contrary to our traditions and hence constitutionally\nsuspect.\xe2\x80\x9d \xe2\x80\x9c \xe2\x80\x98[B]ecause racial characteristics so seldom provide a relevant basis for disparate\ntreatment,\xe2\x80\x99 \xe2\x80\x9d Richmond v. J. A. Croson Co., \xe2\x80\x9cthe Equal Protection Clause demands that racial\nclassifications . . . be subjected to the \xe2\x80\x98most rigid scrutiny.\xe2\x80\x99 \xe2\x80\x9d Loving v. Virginia.\nTo implement these canons, judicial review must begin from the position that \xe2\x80\x9cany official action that\ntreats a person differently on account of his race or ethnic origin is inherently suspect.\xe2\x80\x9d Strict scrutiny\nis a searching examination, and it is the government that bears the burden to prove \xe2\x80\x9c \xe2\x80\x98that the reasons\nfor any [racial] classification [are] clearly identified and unquestionably legitimate,\xe2\x80\x99 \xe2\x80\x9d Croson.\n\nII\nGrutter made clear that racial \xe2\x80\x9cclassifications are constitutional only if they are narrowly tailored\nto further compelling governmental interests.\xe2\x80\x9d And Grutter endorsed Justice Powell\xe2\x80\x99s conclusion in\nBakke that \xe2\x80\x9cthe attainment of a diverse student body . . . is a constitutionally permissible goal for an\ninstitution of higher education.\xe2\x80\x9d Thus, under Grutter, strict scrutiny must be applied to any admissions\nprogram using racial categories or classifications.\nAccording to Grutter, a university\xe2\x80\x99s \xe2\x80\x9ceducational judgment that such diversity is essential to its\neducational mission is one to which we defer.\xe2\x80\x9d Grutter concluded that the decision to pursue \xe2\x80\x9cthe\neducational benefits that flow from student body diversity,\xe2\x80\x9d that the University deems integral to\nits mission is, in substantial measure, an academic judgment to which some, but not complete,\njudicial deference is proper under Grutter. A court, of course, should ensure that there is a reasoned,\nprincipled explanation for the academic decision. On this point, the District Court and Court of\nAppeals were correct in finding that Grutter calls for deference to the University\xe2\x80\x99s conclusion, \xe2\x80\x9c \xe2\x80\x98based\non its experience and expertise,\xe2\x80\x99 \xe2\x80\x9d that a diverse student body would serve its educational goals. There\nis disagreement about whether Grutter was consistent with the principles of equal protection in\napproving this compelling interest in diversity. But the parties here do not ask the Court to revisit that\naspect of Grutter\xe2\x80\x99s holding.\nA university is not permitted to define diversity as \xe2\x80\x9csome specified percentage of a particular group\nmerely because of its race or ethnic origin.\xe2\x80\x9d Bakke. \xe2\x80\x9cThat would amount to outright racial balancing,\nwhich is patently unconstitutional.\xe2\x80\x9d Grutter. \xe2\x80\x9cRacial balancing is not transformed from \xe2\x80\x98patently\nunconstitutional\xe2\x80\x99 to a compelling state interest simply by relabeling it \xe2\x80\x98racial diversity.\xe2\x80\x99 \xe2\x80\x9d Parents\nInvolved in Community Schools v. Seattle School Dist. No. 1.\nOnce the University has established that its goal of diversity is consistent with strict scrutiny,\nhowever, there must still be a further judicial determination that the admissions process meets strict\nscrutiny in its implementation. The University must prove that the means chosen by the University to\nattain diversity are narrowly tailored to that goal. On this point, the University receives no deference.\nGrutter made clear that it is for the courts, not for university administrators, to ensure that \xe2\x80\x9c[t]he\nmeans chosen to accomplish the [government\xe2\x80\x99s] asserted purpose must be specifically and narrowly\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 213\n\n\x0cframed to accomplish that purpose.\xe2\x80\x9d True, a court can take account of a university\xe2\x80\x99s experience and\nexpertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter,\nit remains at all times the University\xe2\x80\x99s obligation to demonstrate, and the Judiciary\xe2\x80\x99s obligation to\ndetermine, that admissions processes \xe2\x80\x9censure that each applicant is evaluated as an individual and not\nin a way that makes an applicant\xe2\x80\x99s race or ethnicity the defining feature of his or her application.\xe2\x80\x9d\nNarrow tailoring also requires that the reviewing court verify that it is \xe2\x80\x9cnecessary\xe2\x80\x9d for a university\nto use race to achieve the educational benefits of diversity. Bakke. This involves a careful judicial\ninquiry into whether a university could achieve sufficient diversity without using racial classifications.\nAlthough \xe2\x80\x9c[n]arrow tailoring does not require e\nxhaustion of every conceivable race-neutral\nalternative,\xe2\x80\x9d strict scrutiny does require a court to examine with care, and not defer to, a university\xe2\x80\x99s\n\xe2\x80\x9cserious, good faith consideration of workable race-neutral alternatives.\xe2\x80\x9d See Grutter (emphasis\nadded). Consideration by the university is of course necessary, but it is not sufficient to satisfy strict\nscrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives\nwould produce the educational benefits of diversity. If \xe2\x80\x9c \xe2\x80\x98a nonracial approach . . . could promote the\nsubstantial interest about as well and at tolerable administrative expense,\xe2\x80\x99 \xe2\x80\x9d then the university may\nnot consider race. A plaintiff, of course, bears the burden of placing the validity of a university\xe2\x80\x99s\nadoption of an affirmative action plan in issue. But strict scrutiny imposes on the university the\nultimate burden of demonstrating, before turning to racial classifications, that available, workable\nrace-neutral alternatives do not suffice.\nRather than perform this searching examination, however, the Court of Appeals held petitioner could\nchallenge only \xe2\x80\x9cwhether [the University\xe2\x80\x99s] decision to reintroduce race as a factor in admissions was\nmade in good faith.\xe2\x80\x9d And in considering such a challenge, the court would \xe2\x80\x9cpresume the University\nacted in good faith\xe2\x80\x9d and place on petitioner the burden of rebutting that presumption. The Court of\nAppeals held that to \xe2\x80\x9csecond-guess the merits\xe2\x80\x9d of this aspect of the University\xe2\x80\x99s decision was a task it\nwas \xe2\x80\x9cill-equipped to perform\xe2\x80\x9d and that it would attempt only to \xe2\x80\x9censure that [the University\xe2\x80\x99s] decision\nto adopt a race-conscious admissions policy followed from [a process of] good faith consideration.\xe2\x80\x9d\nThe Court of Appeals thus concluded that \xe2\x80\x9cthe narrow-tailoring inquiry\xe2\x80\x94like the compelling-interest\ninquiry\xe2\x80\x94is undertaken with a degree of deference to the Universit[y].\xe2\x80\x9d. Because \xe2\x80\x9cthe efforts of the\nUniversity have been studied, serious, and of high purpose,\xe2\x80\x9d the Court of Appeals held that the use of\nrace in the admissions program fell within \xe2\x80\x9ca constitutionally protected zone of discretion.\xe2\x80\x9d\nThese expressions of the controlling standard are at odds with Grutter\xe2\x80\x99s command that \xe2\x80\x9call racial\nclassifications imposed by government \xe2\x80\x98must be analyzed by a reviewing court under strict scrutiny.\xe2\x80\x99 \xe2\x80\x9d\nIn Grutter, the Court approved the plan at issue upon concluding that it was not a quota, was\nsufficiently flexible, was limited in time, and followed \xe2\x80\x9cserious, good faith consideration of workable\nrace-neutral alternatives.\xe2\x80\x9d As noted above, the parties do not challenge, and the Court therefore does\nnot consider, the correctness of that determination.\nGrutter did not hold that good faith would forgive an impermissible consideration of race. It must be\nremembered that \xe2\x80\x9cthe mere recitation of a \xe2\x80\x98benign\xe2\x80\x99 or legitimate purpose for a racial classification is\nentitled to little or no weight.\xe2\x80\x9d Croson. Strict scrutiny does not permit a court to accept a school\xe2\x80\x99s\n\n214 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cassertion that its admissions process uses race in a permissible way without a court giving close\nanalysis to the evidence of how the process works in practice.\n* * * *The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow\na way by deferring to the University\xe2\x80\x99s good faith in its use of racial classifications and affirming\nthe grant of summary judgment on that basis. The Court vacates that judgment, but fairness to the\nlitigants and the courts that heard the case requires that it be remanded so that the admissions\nprocess can be considered and judged under a correct analysis. Unlike Grutter, which was decided\nafter trial, this case arises from cross-motions for summary judgment. In this case, as in similar cases,\nin determining whether summary judgment in favor of the University would be appropriate, the Court\nof Appeals must assess whether the University has offered sufficient evidence that would prove that\nits admissions program is narrowly tailored to obtain the educational benefits of diversity. Whether\nthis record\xe2\x80\x94and not \xe2\x80\x9csimple . . . assurances of good intention\xe2\x80\x9d\xe2\x80\x94is sufficient is a question for the Court\nof Appeals in the first instance.\nStrict scrutiny must not be \xe2\x80\x9c \xe2\x80\x98strict in theory, but fatal in fact,\xe2\x80\x99 \xe2\x80\x9d Adarand. But the opposite is also\ntrue. Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be\nmeaningful, a university must make a showing that its plan is narrowly tailored to achieve the only\ninterest that this Court has approved in this context: the benefits of a student body diversity that\n\xe2\x80\x9cencompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin\nis but a single though important element.\xe2\x80\x9d Bakke (opinion of Powell, J.). The judgment of the Court of\nAppeals is vacated, and the case is remanded for further proceedings consistent with this opinion.\nIt is so ordered.\nJUSTICE THOMAS, CONCURRING.\nI join the Court\xe2\x80\x99s opinion because I agree that the Court of Appeals did not apply strict scrutiny to the\nUniversity of Texas at Austin\xe2\x80\x99s (University) use of racial discrimination in admissions decisions. I write\nseparately to explain that I would overrule Grutter v. Bollinger, and hold that a State\xe2\x80\x99s use of race in\nhigher education admissions decisions is categorically prohibited by the Equal Protection Clause.\n\nI\nA\nThe Fourteenth Amendment provides that no State shall \xe2\x80\x9cdeny to any person . . . the equal protection\nof the laws.\xe2\x80\x9d The Equal Protection Clause guarantees every person the right to be treated equally\nby the State, without regard to race. \xe2\x80\x9cAt the heart of this [guarantee] lies the principle that the\ngovernment must treat citizens as individuals, and not as members of racial, ethnic, or religious\ngroups.\xe2\x80\x9d Missouri v. Jenkins (1995) (Thomas, J., concurring). \xe2\x80\x9cIt is for this reason that we must subject\nall racial classifications to the strictest of scrutiny.\xe2\x80\x9d Id.\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 215\n\n\x0cUnder strict scrutiny, all racial classifications are categorically prohibited unless they are \xe2\x80\x9c \xe2\x80\x98necessary\nto further a compelling governmental interest\xe2\x80\x99 \xe2\x80\x9d and \xe2\x80\x9cnarrowly tailored to that end.\xe2\x80\x9d This most\nexacting standard \xe2\x80\x9chas proven automatically fatal\xe2\x80\x9d in almost every case. Jenkins (Thomas, J.,\nconcurring). And rightly so. \xe2\x80\x9cPurchased at the price of immeasurable human suffering, the equal\nprotection principle reflects our Nation\xe2\x80\x99s understanding that [racial] classifications ultimately have\na destructive impact on the individual and our society.\xe2\x80\x9d Adarand Constructors, Inc. v. Pe\xc3\xb1a (Thomas,\nJ., concurring in part and concurring in judgment). \xe2\x80\x9cThe Constitution abhors classifications based on\nrace\xe2\x80\x9d because \xe2\x80\x9cevery time the government places citizens on racial registers and makes race relevant\nto the provision of burdens or benefits, it demeans us all.\xe2\x80\x9d Grutter (Thomas, J., concurring in part and\ndissenting in part).\n\nB\n1\nThe Court first articulated the strict-scrutiny standard in Korematsu v. United States (1944). There, we\nheld that \xe2\x80\x9c[p]ressing public necessity may sometimes justify the existence of [racial discrimination];\nracial antagonism never can.\xe2\x80\x9d Aside from Grutter, the Court has recognized only two instances in\nwhich a \xe2\x80\x9c[p]ressing public necessity\xe2\x80\x9d may justify racial discrimination by the government. First, in\nKorematsu, the Court recognized that protecting national security may satisfy this exacting standard.\nIn that case, the Court upheld an evacuation order directed at \xe2\x80\x9call persons of Japanese ancestry\xe2\x80\x9d\non the grounds that the Nation was at war with Japan and that the order had \xe2\x80\x9ca definite and close\nrelationship to the prevention of espionage and sabotage.\xe2\x80\x9d Second, the Court has recognized that the\ngovernment has a compelling interest in remedying past discrimination for which it is responsible, but\nwe have stressed that a government wishing to use race must provide \xe2\x80\x9ca \xe2\x80\x98strong basis in evidence for\nits conclusion that remedial action [is] necessary.\xe2\x80\x99 \xe2\x80\x9d Richmond v. J. A. Croson Co.\nIn contrast to these compelling interests that may, in a narrow set of circumstances, justify racial\ndiscrimination, the Court has frequently found other asserted interests insufficient. * * * *\n\n2\nGrutter was a radical departure from our strict-scrutiny precedents. * * * *\n\nII\nA\nThe University claims that the District Court found that it has a compelling interest in attaining\n216 | Liberty, Equality, and Due Process: Third Edition\n\n\x0c\xe2\x80\x9ca diverse student body and the educational benefits flowing from such diversity.\xe2\x80\x9d The use of the\nconjunction, \xe2\x80\x9cand,\xe2\x80\x9d implies that the University believes its discrimination furthers two distinct\ninterests. The first is an interest in attaining diversity for its own sake. The second is an interest in\nattaining educational benefits that allegedly flow from diversity.\nAttaining diversity for its own sake is a nonstarter. As even Grutter recognized, the pursuit of diversity\nas an end is nothing more than impermissible \xe2\x80\x9cracial balancing.\xe2\x80\x9d Rather, diversity can only be the\nmeans by which the University obtains educational benefits; it cannot be an end pursued for its own\nsake. Therefore, the educational benefits allegedly produced by diversity must rise to the level of a\ncompelling state interest in order for the program to survive strict scrutiny.\nUnfortunately\n\nfor\n\nthe\n\nUniversity,\n\nthe\n\neducational\n\nbenefits\n\nflowing\n\nfrom\n\nstudent\n\nbody\n\ndiversity\xe2\x80\x94assuming they exist\xe2\x80\x94hardly qualify as a compelling state interest. Indeed, the argument\nthat educational benefits justify racial discrimination was advanced in support of racial segregation\nin the 1950\xe2\x80\x99s, but emphatically rejected by this Court. And just as the alleged educational benefits of\nsegregation were insufficient to justify racial discrimination then, see Brown v. Board of Education\n(1954), the alleged educational benefits of diversity cannot justify racial discrimination today. * * * *\n\nB\nMy view of the Constitution is the one advanced by the plaintiffs in Brown: \xe2\x80\x9c[N]o State has any\nauthority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in\naffording educational opportunities among its citizens.\xe2\x80\x9d The Constitution does not pander to faddish\ntheories about whether race mixing is in the public interest. The Equal Protection Clause strips States\nof all authority to use race as a factor in providing education. All applicants must be treated equally\nunder the law, and no benefit in the eye of the beholder can justify racial discrimination.\nThis principle is neither new nor difficult to understand. In 1868, decades before Plessy, the Iowa\nSupreme Court held that schools may not discriminate against applicants based on their skin color. In\nClark v. Board of Directors, 24 Iowa 266 (1868), a school denied admission to a student because she was\nblack, and \xe2\x80\x9cpublic sentiment [was] opposed to the intermingling of white and colored children in the\nsame schools.\xe2\x80\x9d The Iowa Supreme Court rejected that flimsy justification, holding that \xe2\x80\x9call the youths\nare equal before the law, and there is no discretion vested in the board . . . or elsewhere, to interfere\nwith or disturb that equality.\xe2\x80\x9d \xe2\x80\x9cFor the courts to sustain a board of school directors . . . in limiting the\nrights and privileges of persons by reason of their [race], would be to sanction a plain violation of the\nspirit of our laws not only, but would tend to perpetuate the national differences of our people and\nstimulate a constant strife, if not a war of races.\xe2\x80\x9d This simple, yet fundamental, truth was lost on the\nCourt in Plessy and Grutter.\nI would overrule Grutter and hold that the University\xe2\x80\x99s admissions program violates the Equal\nProtection Clause because the University has not put forward a compelling interest that could\npossibly justify racial discrimination.\n\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 217\n\n\x0cIII\nWhile I find the theory advanced by the University to justify racial discrimination facially inadequate,\nI also believe that its use of race has little to do with the alleged educational benefits of diversity.\nI suspect that the University\xe2\x80\x99s program is instead based on the benighted notion that it is possible\nto tell when discrimination helps, rather than hurts, racial minorities. The worst forms of racial\ndiscrimination in this Nation have always been accompanied by straight-faced representations that\ndiscrimination helped minorities.\n\nA\nSlaveholders argued that slavery was a \xe2\x80\x9cpositive good\xe2\x80\x9d that civilized blacks and elevated them in every\ndimension of life. * * * *\nA century later, segregationists similarly asserted that segregation was not only benign, but good for\nblack students. They argued, for example, that separate schools protected black children from racist\nwhite students and teachers. And they even appealed to the fact that many blacks agreed that separate\nschools were in the \xe2\x80\x9cbest interests\xe2\x80\x9d of both races.\nFollowing in these inauspicious footsteps, the University would have us believe that its discrimination\nis likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign.\n* * * * It is for this reason that the Court has repeatedly held that strict scrutiny applies to all\nracial classifications, regardless of whether the government has benevolent motives. The University\xe2\x80\x99s\nprofessed good intentions cannot excuse its outright racial discrimination any more than such\nintentions justified the now denounced arguments of slaveholders and segregationists.\n\nB\nWhile it does not, for constitutional purposes, matter whether the University\xe2\x80\x99s racial discrimination is\nbenign, I note that racial engineering does in fact have insidious consequences. There can be no doubt\nthat the University\xe2\x80\x99s discrimination injures white and Asian applicants who are denied admission\nbecause of their race. But I believe the injury to those admitted under the University\xe2\x80\x99s discriminatory\nadmissions program is even more harmful.\nBlacks and Hispanics admitted to the University as a result of racial discrimination are, on average,\nfar less prepared than their white and Asian classmates. In the University\xe2\x80\x99s entering class of 2009, for\nexample, among the students admitted outside the Top Ten Percent plan, blacks scored at the 52d\npercentile of 2009 SAT takers nationwide, while Asians scored at the 93d percentile. Brief for Richard\nSander et al. as Amici Curiae 3\xe2\x80\x934, and n. 4. Blacks had a mean GPA of 2.57 and a mean SAT score of\n1524; Hispanics had a mean GPA of 2.83 and a mean SAT score of 1794; whites had a mean GPA of 3.04\nand a mean SAT score of 1914; and Asians had a mean GPA of 3.07 and a mean SAT score of 1991.\nTellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has\n218 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cpresented a shred of evidence that black and Hispanic students are able to close this substantial gap\nduring their time at the University. * * * *\nFurthermore, the University\xe2\x80\x99s discrimination does nothing to increase the number of blacks and\nHispanics who have access to a college education generally. Instead, the University\xe2\x80\x99s discrimination\nhas a pervasive shifting effect. See T. Sowell, Affirmative Action Around the World 145\xe2\x80\x93146 (2004). The\nUniversity admits minorities who otherwise would have attended less selective colleges where they\nwould have been more evenly matched. But, as a result of the mismatching, many blacks and Hispanics\nwho likely would have excelled at less elite schools are placed in a position where underperformance\nis all but inevitable because they are less academically prepared than the white and Asian students\nwith whom they must compete. Setting aside the damage wreaked upon the self-confidence of these\novermatched students, there is no evidence that they learn more at the University than they would\nhave learned at other schools for which they were better prepared. Indeed, they may learn less.\nThe Court of Appeals believed that the University needed to enroll more blacks and Hispanics because\nthey remained \xe2\x80\x9cclustered in certain programs.\xe2\x80\x9d But racial discrimination may be the cause of, not\nthe solution to, this clustering. There is some evidence that students admitted as a result of racial\ndiscrimination are more likely to abandon their initial aspirations to become scientists and engineers\nthan are students with similar qualifications who attend less selective schools. These students may\nwell drift towards less competitive majors because the mismatch caused by racial discrimination in\nadmissions makes it difficult for them to compete in more rigorous majors.\nMoreover, the University\xe2\x80\x99s discrimination \xe2\x80\x9cstamp[s] [blacks and Hispanics] with a badge of inferiority.\xe2\x80\x9d\nAdarand (opinion of Thomas, J.). It taints the accomplishments of all those who are admitted as a\nresult of racial discrimination. And, it taints the accomplishments of all those who are the same\nrace as those admitted as a result of racial discrimination. In this case, for example, most blacks\nand Hispanics attending the University were admitted without discrimination under the Top Ten\nPercent plan, but no one can distinguish those students from the ones whose race played a role in\ntheir admission. \xe2\x80\x9cWhen blacks [and Hispanics] take positions in the highest places of government,\nindustry, or academia, it is an open question . . . whether their skin color played a part in their\nadvancement.\xe2\x80\x9d See Grutter (opinion of Thomas, J.). \xe2\x80\x9cThe question itself is the stigma\xe2\x80\x94because either\nracial discrimination did play a role, in which case the person may be deemed \xe2\x80\x98otherwise unqualified,\xe2\x80\x99\nor it did not, in which case asking the question itself unfairly marks those . . . who would succeed\nwithout discrimination.\xe2\x80\x9d Although cloaked in good intentions, the University\xe2\x80\x99s racial tinkering harms\nthe very people it claims to be helping.\nFor the foregoing reasons, I would overrule Grutter. However, because the Court correctly concludes\nthat the Court of Appeals did not apply strict scrutiny, I join its opinion.\nJUSTICE GINSBURG, DISSENTING.\nThe University of Texas at Austin (University) is candid about what it is endeavoring to do: It seeks\nto achieve student-body diversity through an admissions policy patterned after the Harvard plan\nreferenced as exemplary in Justice Powell\xe2\x80\x99s opinion in Regents of Univ. of Cal. v. Bakke. The University\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 219\n\n\x0chas steered clear of a quota system like the one struck down in Bakke, which excluded all nonminority\ncandidates from competition for a fixed number of seats. And, like so many educational institutions\nacross the Nation, the University has taken care to follow the model approved by the Court in Grutter\nv. Bollinger.\nPetitioner urges that Texas\xe2\x80\x99 Top Ten Percent Law and race-blind holistic review of each application\nachieve significant diversity, so the University must be content with those alternatives. I have said\nbefore and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race\nunconscious. * * * *\nTexas\xe2\x80\x99 percentage plan was adopted with racially segregated neighborhoods and schools front and\ncenter stage. See House Research Organization, Bill Analysis, HB 588, pp. 4\xe2\x80\x935 (Apr. 15, 1997) (\xe2\x80\x9cMany\nregions of the state, school districts, and high schools in Texas are still predominantly composed of\npeople from a single racial or ethnic group. Because of the persistence of this segregation, admitting\nthe top 10 percent of all high schools would provide a diverse population and ensure that a large,\nwell qualified pool of minority students was admitted to Texas universities.\xe2\x80\x9d). It is race consciousness,\nnot blindness to race, that drives such plans. As for holistic review, if universities cannot explicitly\ninclude race as a factor, many may \xe2\x80\x9cresort to camouflage\xe2\x80\x9d to \xe2\x80\x9cmaintain their minority enrollment.\xe2\x80\x9d\nGratz (Ginsburg, J., dissenting).\nI have several times explained why government actors, including state universities, need not be\nblind to the lingering effects of \xe2\x80\x9can overtly discriminatory past,\xe2\x80\x9d the legacy of \xe2\x80\x9ccenturies of lawsanctioned inequality.\xe2\x80\x9d Among constitutionally permissible options, I remain convinced, \xe2\x80\x9cthose that\ncandidly disclose their consideration of race [are] preferable to those that conceal it.\xe2\x80\x9d Gratz (dissenting\nopinion).\nAccordingly, I would not return this case for a second look. As the thorough opinions below show,\nthe University\xe2\x80\x99s admissions policy flexibly considers race only as a \xe2\x80\x9cfactor of a factor of a factor\nof a factor\xe2\x80\x9d in the calculus; followed a yearlong review through which the University reached the\nreasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve,\nin appropriate measure, the educational benefits of student-body diversity; and is subject to periodic\nreview to ensure that the consideration of race remains necessary and proper to achieve the\nUniversity\xe2\x80\x99s educational objectives. Justice Powell\xe2\x80\x99s opinion in Bakke and the Court\xe2\x80\x99s decision in\nGrutter require no further determinations.\nThe Court rightly declines to cast off the equal protection framework settled in Grutter. Yet it stops\nshort of reaching the conclusion that framework warrants. Instead, the Court vacates the Court\nof Appeals\xe2\x80\x99 judgment and remands for the Court of Appeals to \xe2\x80\x9cassess whether the University has\noffered sufficient evidence [to] prove that its admissions program is narrowly tailored to obtain the\neducational benefits of diversity.\xe2\x80\x9d As I see it, the Court of Appeals has already completed that inquiry,\nand its judgment, trained on this Court\xe2\x80\x99s Bakke and Grutter pathmarkers, merits our approbation.\n\n220 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cNote: Fisher on remand in the Fifth Circuit\nIn Fisher v. Univ. of Texas at Austin, 758 F.3d 633 (5th Cir. 2014), the Fifth Circuit on remand affirmed its\nearlier ruling that the University of Texas plan was constitutional in a 2-1 decision. [Recall that panels\non the Courts of Appeals are comprised of three judges].\nMany found the result surprising.\nThe Fifth Circuit majority opinion concluded:\nIn sum, it is suggested that while holistic review may be a necessary and ameliorating\ncomplement to the Top Ten Percent Plan, UT Austin has not shown that its holistic review\nneed include any reference to race, this because the Plan produces sufficient numbers of\nminorities for critical mass. This contention views minorities as a group, abjuring the focus\nupon individuals\xe2\x80\x94each person\xe2\x80\x99s unique potential. Race is relevant to minority and nonminority, notably when candidates have flourished as a minority in their school\xe2\x80\x94whether they\nare white or black. Grutter reaffirmed that \xe2\x80\x9c[ j]ust as growing up in a particular region or\nhaving particular professional experiences is likely to affect an individual\xe2\x80\x99s views, so too is\none\xe2\x80\x99s own, unique experience of being a racial minority in a society, like our own, in which race\nstill matters.\xe2\x80\x9d We are persuaded that to deny UT Austin its limited use of race in its search for\nholistic diversity would hobble the richness of the educational experience in contradiction of\nthe plain teachings of Bakke and Grutter. The need for such skill sets to complement the draws\nfrom majority-white and majority-minority schools flows directly from an understanding of\nwhat the Court has made plain diversity is not. To conclude otherwise is to narrow its focus\nto a tally of skin colors produced in defiance of Justice Kennedy\xe2\x80\x99s opinion for the Court which\neschewed the narrow metric of numbers and turned the focus upon individuals. This powerful\ncharge does not deny the relevance of race. We find force in the argument that race here\nis a necessary part, albeit one of many parts, of the decisional matrix where being white\nin a minority-majority school can set one apart just as being a minority in a majority-white\nschool\xe2\x80\x94not a proffer of societal discrimination in justification for use of race, but a search for\nstudents with a range of skills, experiences, and performances\xe2\x80\x94one that will be impaired by\nturning a blind eye to the differing opportunities offered by the schools from\nIt is settled that instruments of state may pursue facially neutral policies calculated to promote\nequality of opportunity among students to whom the public schools of Texas assign quite\ndifferent starting places in the annual race for seats in its flagship university. It is equally\nsettled that universities may use race as part of a holistic admissions program where it\ncannot otherwise achieve diversity. This interest is compelled by the reality that university\neducation is more the shaping of lives than the filling of heads with facts\xe2\x80\x94the classic assertion\nof the humanities. Yet the backdrop of our efforts here includes the reality that accepting\nas permissible policies whose purpose is to achieve a desired racial effect taxes the line\nbetween quotas and holistic use of race towards a critical mass. We have hewed this line here,\npersuaded by UT Austin from this record of its necessary use of race in a holistic process and\nthe want of workable alternatives that would not require even greater use of race, faithful to\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 221\n\n\x0cthe content given to it by the Supreme Court. To reject the UT Austin plan is to confound\ndeveloping principles of neutral affirmative action, looking away from Bakke and Grutter,\nleaving them in uniform but without command\xe2\x80\x94due only a courtesy salute in passing.\nFor these reasons, we AFFIRM.\nThe Fifth Circuit declined en banc review by a vote of 10-5. http://lawprofessors.typepad.com/\nconlaw/2014/11/fifth-circuit-denies-en-banc-review-in-fisher-remand-.html. Not surprisingly, the\nUnited States Supreme Court granted certiorari to review the Fifth Circuit\xe2\x80\x99s 2014 decision.\n\nFisher v. University of Texas at Austin (Fisher II)\n579 U.S. ___ (2016)\nKENNEDY, J., DELIVERED THE OPINION OF THE COURT, IN WHICH GINSBURG, BREYER, AND SOTOMAYOR, JJ., JOINED.\nTHOMAS, J., FILED A DISSENTING OPINION. ALITO, J., FILED A DISSENTING OPINION, IN WHICH ROBERTS, C. J., AND\nTHOMAS, J., JOINED. KAGAN, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE.\nJUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT.\nThe Court is asked once again to consider whether the race-conscious admissions program at the\nUniversity of Texas is lawful under the Equal Protection Clause.\n\nI\nThe University of Texas at Austin (or University) relies upon a complex system of admissions that has\nundergone significant evolution over the past two decades. {remainder of facts omitted}.\n\nII\nFisher I set forth three controlling principles relevant to assessing the constitutionality of a public\nuniversity\xe2\x80\x99s affirmative-action program. First, \xe2\x80\x9cbecause racial characteristics so seldom provide a\nrelevant basis for disparate treatment,\xe2\x80\x9d Richmond v. J. A. Croson Co., \xe2\x80\x9c[r]ace may not be considered\n[by a university] unless the admissions process can withstand strict scrutiny,\xe2\x80\x9d Fisher I. Strict scrutiny\nrequires the university to demonstrate with clarity that its \xe2\x80\x9c\xe2\x80\x98purpose or interest is both\nconstitutionally permissible and substantial, and that its use of the classification is necessary . . . to\nthe accomplishment of its purpose.\xe2\x80\x99\xe2\x80\x9d\nSecond, Fisher I confirmed that \xe2\x80\x9cthe decision to pursue \xe2\x80\x98the educational benefits that flow from\nstudent body diversity\xe2\x80\x99 \xe2\x80\xa6 is, in substantial measure, an academic judgment to which some, but\nnot complete, judicial deference is proper.\xe2\x80\x9d A university cannot impose a fixed quota or otherwise\n222 | Liberty, Equality, and Due Process: Third Edition\n\n\x0c\xe2\x80\x9cdefine diversity as \xe2\x80\x98some specified percentage of a particular group merely because of its race or\nethnic origin.\xe2\x80\x99\xe2\x80\x9d Once, however, a university gives \xe2\x80\x9ca reasoned, principled explanation\xe2\x80\x9d for its decision,\ndeference must be given \xe2\x80\x9cto the University\xe2\x80\x99s conclusion, based on its experience and expertise, that a\ndiverse student body would serve its educational goals.\xe2\x80\x9d\nThird, Fisher I clarified that no deference is owed when determining whether the use of race is\nnarrowly tailored to achieve the university\xe2\x80\x99s permissible goals. A university, Fisher I explained, bears\nthe burden of proving a \xe2\x80\x9cnonracial approach\xe2\x80\x9d would not promote its interest in the educational\nbenefits of diversity \xe2\x80\x9cabout as well and at tolerable administrative expense.\xe2\x80\x9d Though \xe2\x80\x9c[n]arrow\ntailoring does not require exhaustion of every conceivable race-neutral alternative\xe2\x80\x9d or \xe2\x80\x9crequire a\nuniversity to choose between maintaining a reputation for excellence [and] fulfilling a commitment\nto provide educational opportunities to members of all racial groups,\xe2\x80\x9d Grutter, it does impose \xe2\x80\x9con\nthe university the ultimate burden of demonstrating\xe2\x80\x9d that \xe2\x80\x9crace-neutral alternatives\xe2\x80\x9d that are both\n\xe2\x80\x9cavailable\xe2\x80\x9d and \xe2\x80\x9cworkable\xe2\x80\x9d \xe2\x80\x9cdo not suffice.\xe2\x80\x9d Fisher I.\nFisher I set forth these controlling principles, while taking no position on the constitutionality of the\nadmissions program at issue in this case. The Court held only that the District Court and the Court of\nAppeals had \xe2\x80\x9cconfined the strict scrutiny inquiry in too narrow a way by deferring to the University\xe2\x80\x99s\ngood faith in its use of racial classifications.\xe2\x80\x9d The Court remanded the case, with instructions to\nevaluate the record under the correct standard and to determine whether the University had made \xe2\x80\x9ca\nshowing that its plan is narrowly tailored to achieve\xe2\x80\x9d the educational benefits that flow from diversity.\nOn remand, the Court of Appeals determined that the program conformed with the strict scrutiny\nmandated by Fisher I. Judge Garza dissented.\n\nIII\nThe University\xe2\x80\x99s program is sui generis. Unlike other approaches to college admissions considered by\nthis Court, it combines holistic review with a percentage plan. This approach gave rise to an unusual\nconsequence in this case: The component of the University\xe2\x80\x99s admissions policy that had the largest\nimpact on petitioner\xe2\x80\x99s chances of admission was not the school\xe2\x80\x99s consideration of race under its\nholistic-review process but rather the Top Ten Percent Plan. Because petitioner did not graduate\nin the top 10 percent of her high school class, she was categorically ineligible for more than threefourths of the slots in the incoming freshman class. It seems quite plausible, then, to think that\npetitioner would have had a better chance of being admitted to the University if the school used raceconscious holistic review to select its entire incoming class, as was the case in Grutter.\nDespite the Top Ten Percent Plan\xe2\x80\x99s outsized effect on petitioner\xe2\x80\x99s chances of admission, she has not\nchallenged it. * * * *\n\nIV\nIn seeking to reverse the judgment of the Court of Appeals, petitioner makes four arguments. First, she\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 223\n\n\x0cargues that the University has not articulated its compelling interest with sufficient clarity. According\nto petitioner, the University must set forth more precisely the level of minority enrollment that would\nconstitute a \xe2\x80\x9ccritical mass.\xe2\x80\x9d Without a clearer sense of what the University\xe2\x80\x99s ultimate goal is, petitioner\nargues, a reviewing court cannot assess whether the University\xe2\x80\x99s admissions program is narrowly\ntailored to that goal.\nAs this Court\xe2\x80\x99s cases have made clear, however, the compelling interest that justifies consideration\nof race in college admissions is not an interest in enrolling a certain number of minority students.\nRather, a university may institute a race-conscious admissions program as a means of obtaining \xe2\x80\x9cthe\neducational benefits that flow from student body diversity.\xe2\x80\x9d Fisher I, see also Grutter. As this Court\nhas said, enrolling a diverse student body \xe2\x80\x9cpromotes cross-racial understanding, helps to break down\nracial stereotypes, and enables students to better understand persons of different races.\xe2\x80\x9d Equally\nimportant, \xe2\x80\x9cstudent body diversity promotes learning outcomes, and better prepares students for an\nincreasingly diverse workforce and society.\xe2\x80\x9d\nIncreasing minority enrollment may be instrumental to these educational benefits, but it is not, as\npetitioner seems to suggest, a goal that can or should be reduced to pure numbers. Indeed, since the\nUniversity is prohibited from seeking a particular number or quota of minority students, it cannot\nbe faulted for failing to specify the particular level of minority enrollment at which it believes the\neducational benefits of diversity will be obtained.\nOn the other hand, asserting an interest in the educational benefits of diversity writ large is\ninsufficient. A university\xe2\x80\x99s goals cannot be elusory or amorphous\xe2\x80\x94they must be sufficiently\nmeasurable to permit judicial scrutiny of the policies adopted to reach them.\nThe record reveals that in first setting forth its current admissions policy, the University articulated\nconcrete and precise goals. On the first page of its 2004 \xe2\x80\x9cProposal to Consider Race and Ethnicity in\nAdmissions,\xe2\x80\x9d the University identifies the educational values it seeks to realize through its admissions\nprocess: the destruction of stereotypes, the \xe2\x80\x9c\xe2\x80\x98promot[ion of] cross-racial understanding,\xe2\x80\x99\xe2\x80\x9d the\npreparation of a student body \xe2\x80\x9c\xe2\x80\x98for an increasingly diverse workforce and society,\xe2\x80\x99\xe2\x80\x9d and the\n\xe2\x80\x9c\xe2\x80\x98cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry.\xe2\x80\x99\xe2\x80\x9d Later in the proposal,\nthe University explains that it strives to provide an \xe2\x80\x9cacademic environment\xe2\x80\x9d that offers a \xe2\x80\x9crobust\nexchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly\ndiverse workforce, and acquisition of competencies required of future leaders.\xe2\x80\x9d All of these objectives,\nas a general matter, mirror the \xe2\x80\x9ccompelling interest\xe2\x80\x9d this Court has approved in its prior cases.\nThe University has provided in addition a \xe2\x80\x9creasoned, principled explanation\xe2\x80\x9d for its decision to pursue\nthese goals. Fisher I. The University\xe2\x80\x99s 39-page proposal was written following a year-long study,\nwhich concluded that \xe2\x80\x9c[t]he use of race-neutral policies and programs ha[d] not been successful\xe2\x80\x9d in\n\xe2\x80\x9cprovid[ing] an educational setting that fosters cross-racial understanding, provid[ing] enlightened\ndiscussion and learning, [or] prepar[ing] students to function in an increasingly diverse workforce and\nsociety.\xe2\x80\x9d Further support for the University\xe2\x80\x99s conclusion can be found in the depositions and affidavits\nfrom various admissions officers, all of whom articulate the same, consistent \xe2\x80\x9creasoned, principled\nexplanation.\xe2\x80\x9d Petitioner\xe2\x80\x99s contention that the University\xe2\x80\x99s goal was insufficiently concrete is rebutted\nby the record.\n224 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cSecond, petitioner argues that the University has no need to consider race because it had already\n\xe2\x80\x9cachieved critical mass\xe2\x80\x9d by 2003 using the Top Ten Percent Plan and race-neutral holistic review.\nPetitioner is correct that a university bears a heavy burden in showing that it had not obtained\nthe educational benefits of diversity before it turned to a race-conscious plan. The record reveals,\nhowever, that, at the time of petitioner\xe2\x80\x99s application, the University could not be faulted on this score.\nBefore changing its policy the University conducted \xe2\x80\x9cmonths of study and deliberation, including\nretreats, interviews, [and] review of data,\xe2\x80\x9d and concluded that \xe2\x80\x9c[t]he use of race-neutral policies and\nprograms ha[d] not been successful in achieving\xe2\x80\x9d sufficient racial diversity at the University. At no\nstage in this litigation has petitioner challenged the University\xe2\x80\x99s good faith in conducting its studies,\nand the Court properly declines to consider the extrarecord materials the dissent relies upon, many\nof which are tangential to this case at best and none of which the University has had a full opportunity\nto respond to. See, e.g., post, at 45\xe2\x80\x93 46 (opinion of Alito, J.) (describing a 2015 report regarding the\nadmission of applicants who are related to \xe2\x80\x9cpolitically connected individuals\xe2\x80\x9d).\nThe record itself contains significant evidence, both statistical and anecdotal, in support of the\nUniversity\xe2\x80\x99s position. To start, the demographic data the University has submitted show consistent\nstagnation in terms of the percentage of minority students enrolling at the University from 1996\nto 2002. In 1996, for example, 266 African-American freshmen enrolled, a total that constituted 4.1\npercent of the incoming class. In 2003, the year Grutter was decided, 267 African-American students\nenrolled\xe2\x80\x94again, 4.1 percent of the incoming class. The numbers for Hispanic and Asian-American\nstudents tell a similar story. Although demographics alone are by no means dispositive, they do have\nsome value as a gauge of the University\xe2\x80\x99s ability to enroll students who can offer underrepresented\nperspectives.\nIn addition to this broad demographic data, the University put forward evidence that minority\nstudents admitted under the Hopwood regime experienced feelings of loneliness and isolation. This\nanecdotal evidence is, in turn, bolstered by further, more nuanced quantitative data. In 2002, 52\npercent of undergraduate classes with at least five students had no African-American students\nenrolled in them, and 27 percent had only one African-American student. In other words, only 21\npercent of undergraduate classes with five or more students in them had more than one AfricanAmerican student enrolled. Twelve percent of these classes had no Hispanic students, as compared\nto 10 percent in 1996. Though a college must continually reassess its need for race-conscious review,\nhere that assessment appears to have been done with care, and a reasonable determination was made\nthat the University had not yet attained its goals.\nThird, petitioner argues that considering race was not necessary because such consideration has\nhad only a \xe2\x80\x9c\xe2\x80\x98minimal impact\xe2\x80\x99 in advancing the [University\xe2\x80\x99s] compelling interest.\xe2\x80\x9d Brief for Petitioner\n46; see also Tr. of Oral Arg. 23:10\xe2\x80\x9312; 24:13\xe2\x80\x9325:2, 25:24\xe2\x80\x9326:3. Again, the record does not support this\nassertion. In 2003, 11 percent of the Texas residents enrolled through holistic review were Hispanic\nand 3.5 percent were African-American. In 2007, by contrast, 16.9 percent of the Texas holistic-review\nfreshmen were Hispanic and 6.8 percent were African-American. Those increases\xe2\x80\x94of 54 percent and\n94 percent, respectively\xe2\x80\x94show that consideration of race has had a meaningful, if still limited, effect\non the diversity of the University\xe2\x80\x99s freshman class.\nIn any event, it is not a failure of narrow tailoring for the impact of racial consideration to be minor.\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 225\n\n\x0cThe fact that race consciousness played a role in only a small portion of admissions decisions should\nbe a hallmark of narrow tailoring, not evidence of unconstitutionality.\nPetitioner\xe2\x80\x99s final argument is that \xe2\x80\x9cthere are numerous other available race-neutral means of\nachieving\xe2\x80\x9d the University\xe2\x80\x99s compelling interest. A review of the record reveals, however, that, at the\ntime of petitioner\xe2\x80\x99s application, none of her proposed alternatives was a workable means for the\nUniversity to attain the benefits of diversity it sought. For example, petitioner suggests that the\nUniversity could intensify its outreach efforts to African-American and Hispanic applicants. But the\nUniversity submitted extensive evidence of the many ways in which it already had intensified its\noutreach efforts to those students. The University has created three new scholarship programs,\nopened new regional admissions centers, increased its recruitment budget by half-a-million dollars,\nand organized over 1,000 recruitment events. Perhaps more significantly, in the wake of Hopwood, the\nUniversity spent seven years attempting to achieve its compelling interest using race-neutral holistic\nreview. None of these efforts succeeded, and petitioner fails to offer any meaningful way in which the\nUniversity could have improved upon them at the time of her application.\nPetitioner also suggests altering the weight given to academic and socioeconomic factors in the\nUniversity\xe2\x80\x99s admissions calculus. This proposal ignores the fact that the University tried, and failed,\nto increase diversity through enhanced consideration of socioeconomic and other factors. And it\nfurther ignores this Court\xe2\x80\x99s precedent making clear that the Equal Protection Clause does not force\nuniversities to choose between a diverse student body and a reputation for academic excellence.\nGrutter.\nPetitioner\xe2\x80\x99s final suggestion is to uncap the Top Ten Percent Plan, and admit more\xe2\x80\x94if not all\xe2\x80\x94the\nUniversity\xe2\x80\x99s students through a percentage plan. As an initial matter, petitioner overlooks the fact that\nthe Top Ten Percent Plan, though facially neutral, cannot be understood apart from its basic purpose,\nwhich is to boost minority enrollment. Percentage plans are \xe2\x80\x9cadopted with racially segregated\nneighborhoods and schools front and center stage.\xe2\x80\x9d Fisher I (Ginsburg, J., dissenting). \xe2\x80\x9cIt is race\nconsciousness, not blindness to race, that drives such plans.\xe2\x80\x9d Ibid. Consequently, petitioner cannot\nassert simply that increasing the University\xe2\x80\x99s reliance on a percentage plan would make its admissions\npolicy more race neutral.\nEven if, as a matter of raw numbers, minority enrollment would increase under such a regime,\npetitioner would be hard-pressed to find convincing support for the proposition that college\nadmissions would be improved if they were a function of class rank alone. That approach would\nsacrifice all other aspects of diversity in pursuit of enrolling a higher number of minority students.\nA system that selected every student through class rank alone would exclude the star athlete or\nmusician whose grades suffered because of daily practices and training. It would exclude a talented\nyoung biologist who struggled to maintain above-average grades in humanities classes. And it would\nexclude a student whose freshman-year grades were poor because of a family crisis but who got\nherself back on track in her last three years of school, only to find herself just outside of the top decile\nof her class.\nThese are but examples of the general problem. Class rank is a single metric, and like any single\nmetric, it will capture certain types of people and miss others. This does not imply that students\n226 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cadmitted through holistic review are necessarily more capable or more desirable than those admitted\nthrough the Top Ten Percent Plan. It merely reflects the fact that privileging one characteristic above\nall others does not lead to a diverse student body. Indeed, to compel universities to admit students\nbased on class rank alone is in deep tension with the goal of educational diversity as this Court\xe2\x80\x99s\ncases have defined it. See Grutter (explaining that percentage plans \xe2\x80\x9cmay preclude the university\nfrom conducting the individualized assessments necessary to assemble a student body that is not just\nracially diverse, but diverse along all the qualities valued by the university\xe2\x80\x9d); Fisher (5\n\nth\n\nCir.) (pointing\n\nout that the Top Ten Percent Law leaves out students \xe2\x80\x9cwho fell outside their high school\xe2\x80\x99s top ten\npercent but excelled in unique ways that would enrich the diversity of [the University\xe2\x80\x99s] educational\nexperience\xe2\x80\x9d and \xe2\x80\x9cleaves a gap in an admissions process seeking to create the multi-dimensional\ndiversity that [Regents of Univ. of Cal. v. Bakke] envisions\xe2\x80\x9d). At its center, the Top Ten Percent Plan is a\nblunt instrument that may well compromise the University\xe2\x80\x99s own definition of the diversity it seeks.\nIn addition to these fundamental problems, an admissions policy that relies exclusively on class rank\ncreates perverse incentives for applicants. Percentage plans \xe2\x80\x9cencourage parents to keep their children\nin low-performing segregated schools, and discourage students from taking challenging classes that\nmight lower their grade point averages.\xe2\x80\x9d Gratz (Ginsburg, J., dissenting).\nFor all these reasons, although it may be true that the Top Ten Percent Plan in some instances may\nprovide a path out of poverty for those who excel at schools lacking in resources, the Plan cannot\nserve as the admissions solution that petitioner suggests. Wherever the balance between percentage\nplans and holistic review should rest, an effective admissions policy cannot prescribe, realistically, the\nexclusive use of a percentage plan.\nIn short, none of petitioner\xe2\x80\x99s suggested alternatives\xe2\x80\x94nor other proposals considered or discussed in\nthe course of this litigation\xe2\x80\x94have been shown to be \xe2\x80\x9cavailable\xe2\x80\x9d and \xe2\x80\x9cworkable\xe2\x80\x9d means through which\nthe University could have met its educational goals, as it understood and defined them in 2008. Fisher\nI. The University has thus met its burden of showing that the admissions policy it used at the time it\nrejected petitioner\xe2\x80\x99s application was narrowly tailored. * * * *\nA university is in large part defined by those intangible \xe2\x80\x9cqualities which are incapable of objective\nmeasurement but which make for greatness.\xe2\x80\x9d Sweatt v. Painter (1950). Considerable deference is\nowed to a university in defining those intangible characteristics, like student body diversity, that\nare central to its identity and educational mission. But still, it remains an enduring challenge to our\nNation\xe2\x80\x99s education system to reconcile the pursuit of diversity with the constitutional promise of\nequal treatment and dignity.\nIn striking this sensitive balance, public universities, like the States themselves, can serve as\n\xe2\x80\x9claboratories for experimentation.\xe2\x80\x9d The University of Texas at Austin has a special opportunity to learn\nand to teach. The University now has at its disposal valuable data about the manner in which different\napproaches to admissions may foster diversity or instead dilute it. The University must continue\nto use this data to scrutinize the fairness of its admissions program; to assess whether changing\ndemographics have undermined the need for a race-conscious policy; and to identify the effects, both\npositive and negative, of the affirmative-action measures it deems necessary.\n\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 227\n\n\x0cThe Court\xe2\x80\x99s affirmance of the University\xe2\x80\x99s admissions policy today does not necessarily mean the\nUniversity may rely on that same policy without refinement. It is the University\xe2\x80\x99s ongoing obligation\nto engage in constant deliberation and continued reflection regarding its admissions policies. The\njudgment of the Court of Appeals is affirmed.\nJUSTICE KAGAN TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE.\nJUSTICE THOMAS FILED A SEPARATE DISSENTING OPINION {OMITTED}.\nJUSTICE ALITO, WITH WHOM THE CHIEF JUSTICE AND JUSTICE THOMAS JOIN, DISSENTING.\nSomething strange has happened since our prior decision in this case. (Fisher I). In that decision, we\nheld that strict scrutiny requires the University of Texas at Austin (UT or University) to show that\nits use of race and ethnicity in making admissions decisions serves compelling interests and that\nits plan is narrowly tailored to achieve those ends. Rejecting the argument that we should defer to\nUT\xe2\x80\x99s judgment on those matters, we made it clear that UT was obligated (1) to identify the interests\njustifying its plan with enough specificity to permit a reviewing court to determine whether the\nrequirements of strict scrutiny were met, and (2) to show that those requirements were in fact\nsatisfied. On remand, UT failed to do what our prior decision demanded. The University has still not\nidentified with any degree of specificity the interests that its use of race and ethnicity is supposed to\nserve. Its primary argument is that merely invoking \xe2\x80\x9cthe educational benefits of diversity\xe2\x80\x9d is sufficient\nand that it need not identify any metric that would allow a court to determine whether its plan is\nneeded to serve, or is actually serving, those interests. This is nothing less than the plea for deference\nthat we emphatically rejected in our prior decision. Today, however, the Court inexplicably grants that\nrequest. * * * *\n\nI\nOver the past 20 years, UT has frequently modified its admissions policies, and it has generally\nemployed race and ethnicity in the most aggressive manner permitted under controlling precedent.\n{remainder of discussion of facts omitted}.\n\nII\nUT\xe2\x80\x99s race-conscious admissions program cannot satisfy strict scrutiny. UT says that the program\nfurthers its interest in the educational benefits of diversity, but it has failed to define that interest\nwith any clarity or to demonstrate that its program is narrowly tailored to achieve that or any other\nparticular interest. By accepting UT\xe2\x80\x99s rationales as sufficient to meet its burden, the majority licenses\nUT\xe2\x80\x99s perverse assumptions about different groups of minority students\xe2\x80\x94the precise assumptions\nstrict scrutiny is supposed to stamp out. * * * *\n\n228 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cA\n\xe2\x80\x9cThe moral imperative of racial neutrality is the driving force of the Equal Protection Clause.\xe2\x80\x9d\nRichmond v. J. A. Croson Co. (Kennedy, J., concurring in part and concurring in judgment). * * * *\n\nB\nHere, UT has failed to define its interest in using racial preferences with clarity. As a result, the narrow\ntailoring inquiry is impossible, and UT cannot satisfy strict scrutiny.\nWhen UT adopted its challenged policy, it characterized its compelling interest as obtaining a \xe2\x80\x9c\xe2\x80\x98critical\nmass\xe2\x80\x99\xe2\x80\x9d of underrepresented minorities. * * * * But to this day, UT has not explained in anything other\nthan the vaguest terms what it means by \xe2\x80\x9ccritical mass.\xe2\x80\x9d * * * *\n\nC\nAlthough UT\xe2\x80\x99s primary argument is that it need not point to any interest more specific than \xe2\x80\x9cthe\neducational benefits of diversity,\xe2\x80\x9d it has\xe2\x80\x94at various points in this litigation\xe2\x80\x94identified four more\nspecific goals: demographic parity, classroom diversity, intraracial diversity, and avoiding racial\nisolation. Neither UT nor the majority has demonstrated that any of these four goals provides a\nsufficient basis for satisfying strict scrutiny. And UT\xe2\x80\x99s arguments to the contrary depend on a series\nof invidious assumptions.\n\n1\nFirst, both UT and the majority cite demographic data as evidence that African-American and Hispanic\nstudents are \xe2\x80\x9cunderrepresented\xe2\x80\x9d at UT and that racial preferences are necessary to compensate for\nthis underrepresentation. But neither UT nor the majority is clear about the relationship between\nTexas demographics and UT\xe2\x80\x99s interest in obtaining a critical mass.\nDoes critical mass depend on the relative size of a particular group in the population of a State? For\nexample, is the critical mass of African-Americans and Hispanics in Texas, where African-Americans\nare about 11.8% of the population and Hispanics are about 37.6%, different from the critical mass in\nneighboring New Mexico, where the African-American population is much smaller (about 2.1%) and\nthe Hispanic population constitutes a higher percentage of the State\xe2\x80\x99s total (about 46.3%)? * * * *\nTo the extent that UT is pursuing parity with Texas demographics, that is nothing more than \xe2\x80\x9coutright\nracial balancing,\xe2\x80\x9d which this Court has time and again held \xe2\x80\x9cpatently unconstitutional.\xe2\x80\x9d * * * *\nThe record here demonstrates the pitfalls inherent in racial balancing. Although UT claims an interest\nin the educational benefits of diversity, it appears to have paid little attention to anything other than\nthe number of minority students on its campus and in its classrooms. UT\xe2\x80\x99s 2004 Proposal illustrates\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 229\n\n\x0cthis approach by repeatedly citing numerical assessments of the racial makeup of the student body\nand various classes as the justification for adopting a race-conscious plan. Instead of focusing on the\nbenefits of diversity, UT seems to have resorted to a simple racial census. * * * *\n\n2\nThe other major explanation UT offered in the Proposal was its desire to promote classroom diversity.\nThe Proposal stressed that UT \xe2\x80\x9chas not reached a critical mass at the classroom level.\xe2\x80\x9d\nUT now equivocates, disclaiming any discrete interest in classroom diversity. Instead, UT has taken\nthe position that the lack of classroom diversity was merely a \xe2\x80\x9cred flag that UT had not yet fully\nrealized\xe2\x80\x9d \xe2\x80\x9cthe constitutionally permissible educational benefits of diversity.\xe2\x80\x9d\n* * * *[I]f UT is truly seeking to expose its students to a diversity of ideas and perspectives, its policy\nis poorly tailored to serve that end. UT\xe2\x80\x99s own study\xe2\x80\x94which the majority touts as the best \xe2\x80\x9cnuanced\nquantitative data\xe2\x80\x9d supporting UT\xe2\x80\x99s position, demonstrated that classroom diversity was more lacking\nfor students classified as Asian-American than for those classified as Hispanic. But the UT plan\ndiscriminates against Asian-American students. UT is apparently unconcerned that Asian-Americans\n\xe2\x80\x9cmay be made to feel isolated or may be seen as . . . \xe2\x80\x98spokesperson[s]\xe2\x80\x99 of their race or ethnicity.\xe2\x80\x9d And\nunless the University is engaged in unconstitutional racial balancing based on Texas demographics\n(where Hispanics outnumber Asian-Americans), it seemingly views the classroom contributions of\nAsian-American students as less valuable than those of Hispanic students. In UT\xe2\x80\x99s view, apparently,\n\xe2\x80\x9cAsian Americans are not worth as much as Hispanics in promoting \xe2\x80\x98cross-racial understanding,\xe2\x80\x99\nbreaking down \xe2\x80\x98racial stereotypes,\xe2\x80\x99 and enabling students to \xe2\x80\x98better understand persons of different\nraces.\xe2\x80\x99\xe2\x80\x9d Brief for Asian American Legal Foundation et al. as Amici Curiae 11 (representing 117 AsianAmerican organizations). The majority opinion effectively endorses this view, crediting UT\xe2\x80\x99s reliance\non the classroom study as proof that the University assessed its need for racial discrimination\n(including racial discrimination that undeniably harms Asian-Americans) \xe2\x80\x9cwith care.\xe2\x80\x9d\n* * * * In addition to demonstrating that UT discriminates against Asian-American students, the\nclassroom study also exhibits UT\xe2\x80\x99s use of a few crude, overly simplistic racial and ethnic categories.\nUnder the UT plan, both the favored and the disfavored groups are broad and consist of students from\nenormously diverse backgrounds (\xe2\x80\x9cfive predefined racial categories\xe2\x80\x9d). Because \xe2\x80\x9c[c]rude measures of\nthis sort threaten to reduce [students] to racial chits,\xe2\x80\x9d Parents Involved (opinion of Kennedy, J.), UT\xe2\x80\x99s\nreliance on such measures further undermines any claim based on classroom diversity statistics, see\nid., at 723 (majority opinion) (criticizing school policies that viewed race in rough \xe2\x80\x9cwhite/nonwhite\xe2\x80\x9d\nor \xe2\x80\x9cblack/\xe2\x80\x99other\xe2\x80\x99\xe2\x80\x9d terms); id., at 786 (opinion of Kennedy, J.) (faulting government for relying on \xe2\x80\x9ccrude\nracial categories\xe2\x80\x9d); Metro Broadcasting, (Kennedy, J., dissenting) (concluding that \xe2\x80\x9c\xe2\x80\x98the very attempt to\ndefine with precision a beneficiary\xe2\x80\x99s qualifying racial characteristics is repugnant to our constitutional\nideals,\xe2\x80\x99\xe2\x80\x9d and noting that if the government \xe2\x80\x9c\xe2\x80\x98is to make a serious effort to define racial classes by\ncriteria that can be administered objectively, it must study precedents such as the First Regulation to\nthe Reichs Citizenship Law of November 14, 1935\xe2\x80\x99\xe2\x80\x9d).\nFor example, students labeled \xe2\x80\x9cAsian American,\xe2\x80\x9d seemingly include \xe2\x80\x9cindividuals of Chinese, Japanese,\n230 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cKorean, Vietnamese, Cambodian, Hmong, Indian and other backgrounds comprising roughly 60% of\nthe world\xe2\x80\x99s population,\xe2\x80\x9d Brief for Asian American Legal Foundation et al. as Amici Curiae. It would\nbe ludicrous to suggest that all of these students have similar backgrounds and similar ideas and\nexperiences to share. So why has UT lumped them together and concluded that it is appropriate to\ndiscriminate against Asian-American students because they are \xe2\x80\x9coverrepresented\xe2\x80\x9d in the UT student\nbody? UT has no good answer. And UT makes no effort to ensure that it has a critical mass of, say,\n\xe2\x80\x9cFilipino Americans\xe2\x80\x9d or \xe2\x80\x9cCambodian Americans.\xe2\x80\x9d As long as there are a sufficient number of \xe2\x80\x9cAsian\nAmericans,\xe2\x80\x9d UT is apparently satisfied.\nUT\xe2\x80\x99s failure to provide any definition of the various racial and ethnic groups is also revealing. UT does\nnot specify what it means to be \xe2\x80\x9cAfrican-American,\xe2\x80\x9d \xe2\x80\x9cHispanic,\xe2\x80\x9d \xe2\x80\x9cAsian American,\xe2\x80\x9d \xe2\x80\x9cNative American,\xe2\x80\x9d\nor \xe2\x80\x9cWhite.\xe2\x80\x9d And UT evidently labels each student as falling into only a single racial or ethnic group,\nwithout explaining how individuals with ancestors from different groups are to be characterized.\nAs racial and ethnic prejudice recedes, more and more students will have parents (or grandparents)\nwho fall into more than one of UT\xe2\x80\x99s five groups. According to census figures, individuals describing\nthemselves as members of multiple races grew by 32% from 2000 to 2010. A recent survey reported\nthat 26% of Hispanics and 28% of Asian-Americans marry a spouse of a different race or ethnicity.\nUT\xe2\x80\x99s crude classification system is ill suited for the more integrated country that we are rapidly\nbecoming. UT assumes that if an applicant describes himself or herself as a member of a particular\nrace or ethnicity, that applicant will have a perspective that differs from that of applicants who\ndescribe themselves as members of different groups. But is this necessarily so? If an applicant has one\ngrandparent, great-grandparent, or great-great-grandparent who was a member of a favored group,\nis that enough to permit UT to infer that this student\xe2\x80\x99s classroom contribution will reflect a distinctive\nperspective or set of experiences associated with that group? UT does not say. It instead relies on\napplicants to \xe2\x80\x9cclassify themselves.\xe2\x80\x9d Fisher I. This is an invitation for applicants to game the system.\nFinally, it seems clear that the lack of classroom diversity is attributable in good part to factors other\nthan the representation of the favored groups in the UT student population. UT offers an enormous\nnumber of classes in a wide range of subjects, and it gives undergraduates a very large measure of\nfreedom to choose their classes. UT also offers courses in subjects that are likely to have special appeal\nto members of the minority groups given preferential treatment under its challenged plan, and this of\ncourse diminishes the number of other courses in which these students can enroll. Having designed\nan undergraduate program that virtually ensures a lack of classroom diversity, UT is poorly positioned\nto argue that this very result provides a justification for racial and ethnic discrimination, which the\nConstitution rarely allows.\n\n3\nUT\xe2\x80\x99s purported interest in intraracial diversity, or \xe2\x80\x9cdiversity within diversity,\xe2\x80\x9d also falls short. At\nbottom, this argument relies on the unsupported assumption that there is something deficient or at\nleast radically different about the African-American and Hispanic students admitted through the Top\nTen Percent Plan. * * * *\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 231\n\n\x0cIV\nIt is important to understand what is and what is not at take in this case. What is not at stake is\nwhether UT or any other university may adopt an admissions plan that results in a student body with\na broad representation of students from all racial and ethnic groups. UT previously had a race-neutral\nplan that it claimed had \xe2\x80\x9ceffectively compensated for the loss of affirmative action,\xe2\x80\x9d App. 396a, and UT\ncould have taken other steps that would have increased the diversity of its admitted students without\ntaking race or ethnic background into account.\nWhat is at stake is whether university administrators may justify systematic racial discrimination\nsimply by asserting that such discrimination is necessary to achieve \xe2\x80\x9cthe educational benefits of\ndiversity,\xe2\x80\x9d without explaining\xe2\x80\x94much less proving\xe2\x80\x94why the discrimination is needed or how the\ndiscriminatory plan is well crafted to serve its objectives. Even though UT has never provided any\ncoherent explanation for its asserted need to discriminate on the basis of race, and even though UT\xe2\x80\x99s\nposition relies on a series of unsupported and noxious racial assumptions, the majority concludes that\nUT has met its heavy burden. This conclusion is remarkable\xe2\x80\x94and remarkably wrong.\nBecause UT has failed to satisfy strict scrutiny, I respectfully dissent.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=35#h5p-72\n\nNotes\n1. Justice Alito\xe2\x80\x99s dissenting opinion in Fisher II is substantially edited in the above text; it more than 50\npages. Justice Kennedy\xe2\x80\x99s opinion for the majority is 20 pages. Thoughts?\n2. Fisher II was decided by seven Justices. Justice Scalia died in February 2016, after the oral argument\nin December 2015, but before the Court\xe2\x80\x99s opinion in June 2016.\nJustice Elana Kagan did not participate in Fisher I or Fisher II. Justices make the decision whether\nor not to recuse themselves from a case (although presumably in consultation with their Justice\ncolleagues) and need not provide a reason. Recusal is rooted in an actual or potential conflict of\n232 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cinterest. In Fisher, the widely presumed reason is that Kagan served as Solicitor General for the United\nStates when the Department of Justice (DOJ) made the decision to file an amicus brief in Fisher when\nit was pending in the Fifth Circuit Court of Appeals. As Solicitor General, Kagan would have made the\nultimate decision to file the amicus brief and had ultimate responsibility for the content of the brief.\n3. What do you think the United States argued in its 2010 amicus brief to the Fifth Circuit? Here is the\nintroduction to the Brief\xe2\x80\x99s Argument section (its \xe2\x80\x9cumbrella\xe2\x80\x9d section):\nIn the view of the United States, the University\xe2\x80\x99s limited use of race in its admissions program\nfalls within the constitutional bounds delineated by the Supreme Court in Grutter v. Bollinger,\n539 U.S. 306 (2003). The University has a compelling interest in attaining the level of student\ndiversity necessary to fulfill its educational mission. Before instituting its policy, the University\nundertook a careful study of diversity in its undergraduate enrollment, including the relative\nabsence of minority students in the small classes that permit the highest level of student\ninteraction and therefore benefit most from students with a range of experiences and\nviewpoints. See id. at 330. Finding that it lacked adequate student diversity, the University\ninstituted a narrowly tailored policy that considers race as one among many contextual\nelements that can indicate that the applicant will bring to the University experiences and\nattributes that increase the diversity of the student body. Notably, in keeping with the\nUniversity\xe2\x80\x99s broad conception of diversity, an individual of any race can benefit from having his\nor her race considered. And critically, the policy benefits the entire University community, and\neach individual within it, by helping to bring students of all races together into an educational\nenvironment where they can learn from and share experiences with one another.\nGiven the prominent position of the University in the State of Texas, its admissions policy\nis a crucial means of ensuring that \xe2\x80\x9cthe path to leadership [is] visibly open to talented and\nqualified individuals of every race and ethnicity.\xe2\x80\x9d Grutter, 539 U.S. at 332. As the Supreme\nCourt emphasized in Grutter, \xe2\x80\x9c[e]ffective participation of all racial and ethnic groups in the\ncivic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.\xe2\x80\x9d\nIbid. The challenged admissions policy is an important means of promoting that goal. That\nis particularly so because the University\xe2\x80\x99s admissions policy considers race in an extremely\nlimited way. In 2008, the year plaintiffs applied for admission, fully 80% of entering freshmen\nwere selected through the Top Ten Percent program\xe2\x80\x94an entirely race-neutral process. Race\ncomes into play only when selecting the non-Top Ten Percent admittees, and then only as \xe2\x80\x9ca\nfactor of a factor of a factor of a factor.\xe2\x80\x9d R.E. 49.\nThe University\xe2\x80\x99s effort to promote diversity is a paramount government objective. See Grutter,\n539 U.S. at 330-331. In view of the importance of diversity in educational institutions, the\nUnited States, through the Departments of Education and Justice, supports the efforts of\nschool systems and post-secondary educational institutions that wish to develop admissions\npolicies that endeavor to achieve the educational benefits of diversity in accordance with\nGrutter.\nBrief for the United States as Amicus Curiae Supporting Appellees in Fisher v. University of Texas,\n\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 233\n\n\x0cFisher v. Univ. of Texas at Austin, 631 F.3d 213 (5th Cir. 2011), vacated and remanded, 570 U.S. __, 133 S.\nCt. 2411, 186 L. Ed. 2d 474 (2013).\n\nC. \xe2\x80\x9cAffirmative Action\xe2\x80\x9d and the Political Process\n\nSchuette v. Coalition to Defend Affirmation Action By Any Means Necessary\n(BAMN)\n572 U.S. ___ (2014)\nKENNEDY, J., ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN OPINION, IN WHICH ROBERTS, C. J., AND\nALITO, J., JOINED. ROBERTS, C. J., FILED A CONCURRING OPINION. SCALIA, J., FILED AN OPINION CONCURRING IN THE\nJUDGMENT, IN WHICH THOMAS, J., JOINED. BREYER, J., FILED AN OPINION CONCURRING IN THE JUDGMENT. SOTOMAYOR,\nJ., FILED A DISSENTING OPINION, IN WHICH GINSBURG, J., JOINED. KAGAN, J., TOOK NO PART IN THE CONSIDERATION OR\nDECISION OF THE CASE.\nJUSTICE KENNEDY ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN OPINION, IN WHICH THE CHIEF\nJUSTICE AND JUSTICE ALITO JOIN.\nThe Court in this case must determine whether an amendment to the Constitution of the State of\nMichigan, approved and enacted by its voters, is invalid under the Equal Protection Clause of the\nFourteenth Amendment to the Constitution of the United States.\nIn 2003 the Court reviewed the constitutionality of two admissions systems at the University of\nMichigan, one for its undergraduate class and one for its law school. The undergraduate admissions\nplan was addressed in Gratz v. Bollinger. The law school admission plan was addressed in Grutter\nv. Bollinger. Each admissions process permitted the explicit consideration of an applicant\xe2\x80\x99s race. In\nGratz, the Court invalidated the undergraduate plan as a violation of the Equal Protection Clause. In\nGrutter, the Court found no constitutional flaw in the law school admission plan\xe2\x80\x99s more limited use of\nrace-based preferences.\nIn response to the Court\xe2\x80\x99s decision in Gratz, the university revised its undergraduate admissions\nprocess, but the revision still allowed limited use of race-based preferences. After a statewide debate\non the question of racial preferences in the context of governmental decisionmaking, the voters, in\n2006, adopted an amendment to the State Constitution prohibiting state and other governmental\nentities in Michigan from granting certain preferences, including race-based preferences, in a wide\nrange of actions and decisions. Under the terms of the amendment, race-based preferences cannot\nbe part of the admissions process for state universities. That particular prohibition is central to the\ninstant case.\nThe ballot proposal was called Proposal 2 and, after it passed by a margin of 58 percent to 42\n\n234 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cpercent, the resulting enactment became Article I, \xc2\xa7 26, of the Michigan Constitution. As noted, the\namendment is in broad terms. Section 26 states, in relevant part, as follows:\n\xe2\x80\x9c(1) The University of Michigan, Michigan State University, Wayne State University, and any\nother public college or university, community college, or school district shall not discriminate\nagainst, or grant preferential treatment to, any individual or group on the basis of race, sex,\ncolor, ethnicity, or national origin in the operation of public employment, public education, or\npublic contracting.\n\xe2\x80\x9c(2) The state shall not discriminate against, or grant preferential treatment to, any individual\nor group on the basis of race, sex, color, ethnicity, or national origin in the operation of public\nemployment, public education, or public contracting.\n\xe2\x80\x9c(3) For the purposes of this section \xe2\x80\x98state\xe2\x80\x99 includes, but is not necessarily limited to, the state\nitself, any city, county, any public college, university, or community college, school district, or\nother political subdivision or governmental instrumentality of or within the State of Michigan\nnot included in sub-section 1.\xe2\x80\x9d\nSection 26 was challenged in two cases. Among the plaintiffs in the suits were the Coalition to Defend\nAffirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary\n(BAMN); students; faculty; and prospective applicants to Michigan public universities.\n[In 2008, the District Court granted summary judgment to Michigan, thus upholding \xc2\xa7 26 (Proposal\n2). A panel of the United States Court of Appeals for the Sixth Circuit reversed the grant of summary\njudgment, thus invalidating \xc2\xa7 26. In a closely divided decision, the Sixth Circuit en banc agreed that\n\xc2\xa7 26 was unconstitutional. The United States Supreme Court granted certiorari.]\nBefore the Court addresses the question presented, it is important to note what this case is not about.\nIt is not about the constitutionality, or the merits, of race-conscious admissions policies in higher\neducation. The consideration of race in admissions presents complex questions, in part addressed\nlast Term in Fisher v. University of Texas at Austin (2013). In Fisher, the Court did not disturb the\nprinciple that the consideration of race in admissions is permissible, provided that certain conditions\nare met. In this case, as in Fisher, that principle is not challenged. The question here concerns not\nthe permissibility of race-conscious admissions policies under the Constitution but whether, and in\nwhat manner, voters in the States may choose to prohibit the consideration of racial preferences in\ngovernmental decisions, in particular with respect to school admissions.\nThis Court has noted that some States have decided to prohibit race-conscious admissions policies.\nIn Grutter, the Court noted: \xe2\x80\x9cUniversities in California, Florida, and Washington State, where racial\npreferences in admissions are prohibited by state law, are currently engaged in experimenting with\na wide variety of alternative approaches. Universities in other States can and should draw on the\nmost promising aspects of these race-neutral alternatives as they develop.\xe2\x80\x9d In this way, Grutter\nacknowledged the significance of a dialogue regarding this contested and complex policy question\namong and within States. There was recognition that our federal structure \xe2\x80\x9cpermits \xe2\x80\x98innovation and\nexperimentation\xe2\x80\x99 \xe2\x80\x9d and \xe2\x80\x9cenables greater citizen \xe2\x80\x98involvement in democratic processes.\xe2\x80\x99 \xe2\x80\x9d While this\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 235\n\n\x0ccase arises in Michigan, the decision by the State\xe2\x80\x99s voters reflects in part the national dialogue\nregarding the wisdom and practicality of race-conscious admissions policies in higher education.\nIn Michigan, the State Constitution invests independent boards of trustees with plenary authority\nover public universities, including admissions policies. Mich. Const., Art. VIII, \xc2\xa7 5. Although the\nmembers of the boards are elected, some evidence in the record suggests they delegated authority\nover admissions policy to the faculty. But whether the boards or the faculty set the specific policy,\nMichigan\xe2\x80\x99s public universities did consider race as a factor in admissions decisions before 2006.\nIn holding \xc2\xa7 26 invalid in the context of student admissions at state universities, the Court of Appeals\nrelied in primary part on Washington v. Seattle School Dist. No. 1 (1982) {Note: This is NOT Parents\nInvolved v. Seattle Schools decided in 2007}. * * * * But that determination extends Seattle\xe2\x80\x99s holding in\na case presenting quite different issues to reach a conclusion that is mistaken here. Before explaining\nthis further, it is necessary to consider the relevant cases that preceded Seattle and the background\nagainst which Seattle itself arose.\nThough it has not been prominent in the arguments of the parties, this Court\xe2\x80\x99s decision in Reitman\nv. Mulkey (1967) is a proper beginning point for discussing the controlling decisions. In Mulkey, voters\namended the California Constitution to prohibit any state legislative interference with an owner\xe2\x80\x99s\nprerogative to decline to sell or rent residential property on any basis. Two different cases gave rise\nto Mulkey. In one a couple could not rent an apartment, and in the other a couple were evicted from\ntheir apartment. Those adverse actions were on account of race. In both cases the complaining parties\nwere barred, on account of race, from invoking the protection of California\xe2\x80\x99s statutes; and, as a result,\nthey were unable to lease residential property. This Court concluded that the state constitutional\nprovision was a denial of equal protection. * * * * In a dissent joined by three other Justices, Justice\nHarlan disagreed with the majority\xe2\x80\x99s holding. The dissent reasoned that California, by the action of its\nvoters, simply wanted the State to remain neutral in this area, so that the State was not a party to\ndiscrimination. That dissenting voice did not prevail against the majority\xe2\x80\x99s conclusion that the state\naction in question encouraged discrimination, causing real and specific injury.\nThe next precedent of relevance, Hunter v. Erickson (1969) is central to the arguments the respondents\nmake in the instant case. In Hunter the Court for the first time elaborated what the Court of Appeals\nhere styled the \xe2\x80\x9cpolitical process\xe2\x80\x9d doctrine. There, the Akron City Council found that the citizens\nof Akron consisted of \xe2\x80\x9c\xe2\x80\x98people of different race[s], . . . many of whom live in circumscribed and\nsegregated areas, under sub-standard unhealthful, unsafe, unsanitary and overcrowded conditions,\nbecause of discrimination in the sale, lease, rental and financing of housing.\xe2\x80\x99\xe2\x80\x9d To address the problem,\nAkron enacted a fair housing ordinance to prohibit that sort of discrimination. In response, voters\namended the city charter to overturn the ordinance and to require that any additional\nantidiscrimination housing ordinance be approved by referendum. But most other ordinances\n\xe2\x80\x9cregulating the real property market\xe2\x80\x9d were not subject to those threshold requirements. The plaintiff,\na black woman in Akron, Ohio, alleged that her real estate agent could not show her certain residences\nbecause the owners had specified they would not sell to black persons.\nCentral to the Court\xe2\x80\x99s reasoning in Hunter was that the charter amendment was enacted in\ncircumstances where widespread racial discrimination in the sale and rental of housing led to\n236 | Liberty, Equality, and Due Process: Third Edition\n\n\x0csegregated housing, forcing many to live in \xe2\x80\x9c\xe2\x80\x98unhealthful, unsafe, unsanitary and overcrowded\nconditions.\xe2\x80\x99\xe2\x80\x9d The Court stated: \xe2\x80\x9cIt is against this background that the referendum required by [the\ncharter amendment] must be assessed.\xe2\x80\x9d Akron attempted to characterize the charter amendment\n\xe2\x80\x9csimply as a public decision to move slowly in the delicate area of race relations\xe2\x80\x9d and as a means\n\xe2\x80\x9cto allow the people of Akron to participate\xe2\x80\x9d in the decision. The Court rejected Akron\xe2\x80\x99s flawed\n\xe2\x80\x9cjustifications for its discrimination,\xe2\x80\x9d justifications that by their own terms had the effect of\nacknowledging the targeted nature of the charter amendment. * * * * The Court found that the\ncity charter amendment, by singling out antidiscrimination ordinances, \xe2\x80\x9cplaces special burden on\nracial minorities within the governmental process,\xe2\x80\x9d thus becoming as impermissible as any other\ngovernment action taken with the invidious intent to injure a racial minority. Justice Harlan filed a\nconcurrence. He argued the city charter amendment \xe2\x80\x9chas the clear purpose of making it more difficult\nfor certain racial and religious minorities to achieve legislation that is in their interest.\xe2\x80\x9d * * * * Thus,\nin Mulkey and Hunter, there was a demonstrated injury on the basis of race that, by reasons of state\nencouragement or participation, became more aggravated.\nSeattle is the third case of principal relevance here. There, the school board adopted a mandatory\nbusing program to alleviate racial isolation of minority students in local schools. Voters who opposed\nthe school board\xe2\x80\x99s busing plan passed a state initiative that barred busing to desegregate. The Court\nfirst determined that, although \xe2\x80\x9cwhite as well as Negro children benefit from\xe2\x80\x9d diversity, the school\nboard\xe2\x80\x99s plan \xe2\x80\x9cinures primarily to the benefit of the minority.\xe2\x80\x9d The Court next found that \xe2\x80\x9cthe practical\neffect\xe2\x80\x9d of the state initiative was to \xe2\x80\x9cremov[e] the authority to address a racial problem\xe2\x80\x94and only a\nracial problem\xe2\x80\x94from the existing decisionmaking body, in such a way as to burden minority interests\xe2\x80\x9d\nbecause advocates of busing \xe2\x80\x9cnow must seek relief from the state legislature, or from the statewide\nelectorate.\xe2\x80\x9d The Court therefore found that the initiative had \xe2\x80\x9cexplicitly us[ed] the racial nature of a\ndecision to determine the decisionmaking process.\xe2\x80\x9d (emphasis deleted).\nSeattle is best understood as a case in which the state action in question (the bar on busing enacted\nby the State\xe2\x80\x99s voters) had the serious risk, if not purpose, of causing specific injuries on account of\nrace, just as had been the case in Mulkey and Hunter. Although there had been no judicial finding of\nde jure segregation with respect to Seattle\xe2\x80\x99s school district, it appears as though school segregation\nin the district in the 1940\xe2\x80\x99s and 1950\xe2\x80\x99s may have been the partial result of school board policies that\n\xe2\x80\x9cpermitted white students to transfer out of black schools while restricting the transfer of black\nstudents into white schools.\xe2\x80\x9d Parents Involved in Community Schools v. Seattle School Dist. No. 1 (Breyer,\nJ., dissenting). In 1977, the National Association for the Advancement of Colored People (NAACP) filed\na complaint with the Office for Civil Rights, a federal agency. The NAACP alleged that the school\nboard had maintained a system of de jure segregation. Specifically, the complaint alleged \xe2\x80\x9cthat the\nSeattle School Board had created or perpetuated unlawful racial segregation through, e.g., certain\nschool-transfer criteria, a construction program that needlessly built new schools in white areas,\ndistrict line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit\nracial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect\nto the implementation of promised desegregation efforts.\xe2\x80\x9d As part of a settlement with the Office\nfor Civil Rights, the school board implemented the \xe2\x80\x9cSeattle Plan,\xe2\x80\x9d which used busing and mandatory\nreassignments between elementary schools to reduce racial imbalance and which was the subject of\nthe state initiative at issue in Seattle.\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 237\n\n\x0cAs this Court held in Parents Involved, the school board\xe2\x80\x99s purported remedial action would not be\npermissible today absent a showing of de jure segregation. That holding prompted Justice Breyer to\nobserve in dissent, as noted above, that one permissible reading of the record was that the school\nboard had maintained policies to perpetuate racial segregation in the schools. In all events we must\nunderstand Seattle as Seattle understood itself, as a case in which neither the State nor the United\nStates \xe2\x80\x9cchallenge[d] the propriety of race-conscious student assignments for the purpose of achieving\nintegration, even absent a finding of prior de jure segregation.\xe2\x80\x9d In other words the legitimacy and\nconstitutionality of the remedy in question (busing for desegregation) was assumed, and Seattle must\nbe understood on that basis. Seattle involved a state initiative that \xe2\x80\x9cwas carefully tailored to interfere\nonly with desegregative busing.\xe2\x80\x9d The Seattle Court, accepting the validity of the school board\xe2\x80\x99s busing\nremedy as a predicate to its analysis of the constitutional question, found that the State\xe2\x80\x99s disapproval\nof the school board\xe2\x80\x99s busing remedy was an aggravation of the very racial injury in which the State\nitself was complicit.\nThe broad language used in Seattle, however, went well beyond the analysis needed to resolve the\ncase. The Court there seized upon the statement in Justice Harlan\xe2\x80\x99s concurrence in Hunter that\nthe procedural change in that case had \xe2\x80\x9cthe clear purpose of making it more difficult for certain\nracial and religious minorities to achieve legislation that is in their interest.\xe2\x80\x9d That language, taken\nin the context of the facts in Hunter, is best read simply to describe the necessity for finding an\nequal protection violation where specific injuries from hostile discrimination were at issue. The\nSeattle Court, however, used the language from the Hunter concurrence to establish a new and farreaching rationale. Seattle stated that where a government policy \xe2\x80\x9cinures primarily to the benefit of\nthe minority\xe2\x80\x9d and \xe2\x80\x9cminorities . . . consider\xe2\x80\x9d the policy to be \xe2\x80\x9c\xe2\x80\x98in their interest,\xe2\x80\x99\xe2\x80\x9d then any state action\nthat \xe2\x80\x9cplace[s] effective decisionmaking authority over\xe2\x80\x9d that policy \xe2\x80\x9cat a different level of government\xe2\x80\x9d\nmust be reviewed under strict scrutiny. In essence, according to the broad reading of Seattle, any state\naction with a \xe2\x80\x9cracial focus\xe2\x80\x9d that makes it \xe2\x80\x9cmore difficult for certain racial minorities than for other\ngroups\xe2\x80\x9d to \xe2\x80\x9cachieve legislation that is in their interest\xe2\x80\x9d is subject to strict scrutiny. It is this reading of\nSeattle that the Court of Appeals found to be controlling here. And that reading must be rejected.\n* * * * The {Sixth Circuit\xe2\x80\x99s} expansive reading of Seattle has no principled limitation and raises serious\nquestions of compatibility with the Court\xe2\x80\x99s settled equal protection jurisprudence. To the extent\nSeattle is read to require the Court to determine and declare which political policies serve the\n\xe2\x80\x9cinterest\xe2\x80\x9d of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle;\nit has no support in precedent; and it raises serious constitutional concerns. That expansive language\ndoes not provide a proper guide for decisions and should not be deemed authoritative or controlling.\nThe rule that the Court of Appeals elaborated and respondents seek to establish here would contradict\ncentral equal protection principles.\nIn cautioning against \xe2\x80\x9cimpermissible racial stereotypes,\xe2\x80\x9d this Court has rejected the assumption that\n\xe2\x80\x9cmembers of the same racial group\xe2\x80\x94regardless of their age, education, economic status, or the\ncommunity in which they live\xe2\x80\x94think alike, share the same political interests, and will prefer the same\ncandidates at the polls.\xe2\x80\x9d Shaw v. Reno (1993); see also Metro Broadcasting, Inc. v. FCC (1990) (Kennedy,\nJ., dissenting) (rejecting the \xe2\x80\x9cdemeaning notion that members of . . . defined racial groups ascribe to\ncertain \xe2\x80\x98minority views\xe2\x80\x99 that must be different from those of other citizens\xe2\x80\x9d). It cannot be entertained\n238 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cas a serious proposition that all individuals of the same race think alike. Yet that proposition would be\na necessary beginning point were the Seattle formulation to control, as the Court of Appeals held it\ndid in this case. And if it were deemed necessary to probe how some races define their own interest in\npolitical matters, still another beginning point would be to define individuals according to race. But in\na society in which those lines are becoming more blurred, the attempt to define race-based categories\nalso raises serious questions of its own. Government action that classifies individuals on the basis of\nrace is inherently suspect and carries the danger of perpetuating the very racial divisions the polity\nseeks to transcend. Were courts to embark upon this venture not only would it be undertaken with\nno clear legal standards or accepted sources to guide judicial decision but also it would result in,\nor at least impose a high risk of, inquiries and categories dependent upon demeaning stereotypes,\nclassifications of questionable constitutionality on their own terms.\nEven assuming these initial steps could be taken in a manner consistent with a sound analytic and\njudicial framework, the court would next be required to determine the policy realms in which certain\ngroups\xe2\x80\x94groups defined by race\xe2\x80\x94have a political interest. That undertaking, again without guidance\nfrom any accepted legal standards, would risk, in turn, the creation of incentives for those who\nsupport or oppose certain policies to cast the debate in terms of racial advantage or disadvantage.\nThus could racial antagonisms and conflict tend to arise in the context of judicial decisions as courts\nundertook to announce what particular issues of public policy should be classified as advantageous to\nsome group defined by race. This risk is inherent in adopting the Seattle formulation.\nThere would be no apparent limiting standards defining what public policies should be included\nin what Seattle called policies that \xe2\x80\x9cinur[e] primarily to the benefit of the minority\xe2\x80\x9d and that\n\xe2\x80\x9cminorities . . . consider\xe2\x80\x9d to be \xe2\x80\x9c \xe2\x80\x98in their interest.\xe2\x80\x99 \xe2\x80\x9d Those who seek to represent the interests of\nparticular racial groups could attempt to advance those aims by demanding an equal protection ruling\nthat any number of matters be foreclosed from voter review or participation. In a nation in which\ngovernmental policies are wide ranging, those who seek to limit voter participation might be tempted,\nwere this Court to adopt the Seattle formulation, to urge that a group they choose to define by\nrace or racial stereotypes are advantaged or disadvantaged by any number of laws or decisions. Tax\npolicy, housing subsidies, wage regulations, and even the naming of public schools, highways, and\nmonuments are just a few examples of what could become a list of subjects that some organizations\ncould insist should be beyond the power of voters to decide, or beyond the power of a legislature\nto decide when enacting limits on the power of local authorities or other governmental entities\nto address certain subjects. Racial division would be validated, not discouraged, were the Seattle\nformulation, and the reasoning of the Court of Appeals in this case, to remain in force.\nPerhaps, when enacting policies as an exercise of democratic self-government, voters will determine\nthat race-based preferences should be adopted. The constitutional validity of some of those choices\nregarding racial preferences is not at issue here. The holding in the instant case is simply that the\ncourts may not disempower the voters from choosing which path to follow. In the realm of policy\ndiscussions the regular give-and-take of debate ought to be a context in which rancor or discord\nbased on race are avoided, not invited. And if these factors are to be interjected, surely it ought not to\nbe at the invitation or insistence of the courts.\nOne response to these concerns may be that objections to the larger consequences of the Seattle\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 239\n\n\x0cformulation need not be confronted in this case, for here race was an undoubted subject of the ballot\nissue. But a number of problems raised by Seattle, such as racial definitions, still apply. And this\nprincipal flaw in the ruling of the Court of Appeals does remain: Here there was no infliction of a\nspecific injury of the kind at issue in Mulkey and Hunter and in the history of the Seattle schools. Here\nthere is no precedent for extending these cases to restrict the right of Michigan voters to determine\nthat race-based preferences granted by Michigan governmental entities should be ended.\n* * * * By approving Proposal 2 and thereby adding \xc2\xa7 26 to their State Constitution, the Michigan\nvoters exercised their privilege to enact laws as a basic exercise of their democratic power. In the\nfederal system States \xe2\x80\x9crespond, through the enactment of positive law, to the initiative of those who\nseek a voice in shaping the destiny of their own times.\xe2\x80\x9d Michigan voters used the initiative system to\nbypass public officials who were deemed not responsive to the concerns of a majority of the voters\nwith respect to a policy of granting race-based preferences that raises difficult and delicate issues.\nThe freedom secured by the Constitution consists, in one of its essential dimensions, of the right of\nthe individual not to be injured by the unlawful exercise of governmental power. The mandate for\nsegregated schools, Brown v. Board of Education (1954); a wrongful invasion of the home, Silverman v.\nUnited States (1961); or punishing a protester whose views offend others, Texas v. Johnson (1989); and\nscores of other examples teach that individual liberty has constitutional protection, and that liberty\xe2\x80\x99s\nfull extent and meaning may remain yet to be discovered and affirmed. Yet freedom does not stop\nwith individual rights. Our constitutional system embraces, too, the right of citizens to debate so\nthey can learn and decide and then, through the political process, act in concert to try to shape the\ncourse of their own times and the course of a nation that must strive always to make freedom ever\ngreater and more secure. Here Michigan voters acted in concert and statewide to seek consensus\nand adopt a policy on a difficult subject against a historical background of race in America that has\nbeen a source of tragedy and persisting injustice. That history demands that we continue to learn, to\nlisten, and to remain open to new approaches if we are to aspire always to a constitutional order in\nwhich all persons are treated with fairness and equal dignity. Were the Court to rule that the question\naddressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or\nthat the policies at issue remain too delicate to be resolved save by university officials or faculties,\nacting at some remove from immediate public scrutiny and control; or that these matters are so\narcane that the electorate\xe2\x80\x99s power must be limited because the people cannot prudently exercise that\npower even after a full debate, that holding would be an unprecedented restriction on the exercise\nof a fundamental right held not just by one person but by all in common. It is the right to speak and\ndebate and learn and then, as a matter of political will, to act through a lawful electoral process.\nThe respondents in this case insist that a difficult question of public policy must be taken from the\nreach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an\nelection campaign. Quite in addition to the serious First Amendment implications of that position with\nrespect to any particular election, it is inconsistent with the underlying premises of a responsible,\nfunctioning democracy. One of those premises is that a democracy has the capacity\xe2\x80\x94and the duty\xe2\x80\x94to\nlearn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale\ndeliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court\ndecrees based on the proposition that the public cannot have the requisite repose to discuss certain\n240 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cissues. It is demeaning to the democratic process to presume that the voters are not capable of\ndeciding an issue of this sensitivity on decent and rational grounds. The process of public discourse\nand political debate should not be foreclosed even if there is a risk that during a public campaign\nthere will be those, on both sides, who seek to use racial division and discord to their own political\nadvantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and\nmust, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in\norder to determine how best to form a consensus to shape the destiny of the Nation and its people.\nThese First Amendment dynamics would be disserved if this Court were to say that the question here\nat issue is beyond the capacity of the voters to debate and then to determine.\nThese precepts are not inconsistent with the well-established principle that when hurt or injury is\ninflicted on racial minorities by the encouragement or command of laws or other state action, the\nConstitution requires redress by the courts. * * * *\nFor reasons already discussed, Mulkey, Hunter, and Seattle are not precedents that stand for the\nconclusion that Michigan\xe2\x80\x99s voters must be disempowered from acting. Those cases were ones in\nwhich the political restriction in question was designed to be used, or was likely to be used, to\nencourage infliction of injury by reason of race. What is at stake here is not whether injury will be\ninflicted but whether government can be instructed not to follow a course that entails, first, the\ndefinition of racial categories and, second, the grant of favored status to persons in some racial\ncategories and not others. The electorate\xe2\x80\x99s instruction to governmental entities not to embark upon\nthe course of race-defined and race-based preferences was adopted, we must assume, because the\nvoters deemed a preference system to be unwise, on account of what voters may deem its latent\npotential to become itself a source of the very resentments and hostilities based on race that this\nNation seeks to put behind it. Whether those adverse results would follow is, and should be, the\nsubject of debate. Voters might likewise consider, after debate and reflection, that programs designed\nto increase diversity\xe2\x80\x94consistent with the Constitution\xe2\x80\x94are a necessary part of progress to transcend\nthe stigma of past racism.\nThis case is not about how the debate about racial preferences should be resolved. It is about who may\nresolve it. There is no authority in the Constitution of the United States or in this Court\xe2\x80\x99s precedents\nfor the Judiciary to set aside Michigan laws that commit this policy determination to the voters.\nDeliberative debate on sensitive issues such as racial preferences all too often may shade into rancor.\nBut that does not justify removing certain court-determined issues from the voters\xe2\x80\x99 reach. Democracy\ndoes not presume that some subjects are either too divisive or too profound for public debate.\nThe judgment of the Court of Appeals for the Sixth Circuit is reversed.\nIt is so ordered.\nCHIEF JUSTICE ROBERTS, CONCURRING.\nThe dissent devotes 11 pages to expounding its own policy preferences in favor of taking race into\naccount in college admissions, while nonetheless concluding that it \xe2\x80\x9cdo[es] not mean to suggest that\nthe virtues of adopting race-sensitive admissions policies should inform the legal question before\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 241\n\n\x0cthe Court.\xe2\x80\x9d (opinion of Sotomayor, J.). The dissent concedes that the governing boards of the State\xe2\x80\x99s\nvarious universities could have implemented a policy making it illegal to \xe2\x80\x9cdiscriminate against, or\ngrant preferential treatment to,\xe2\x80\x9d any individual on the basis of race. On the dissent\xe2\x80\x99s view, if the\ngoverning boards conclude that drawing racial distinctions in university admissions is undesirable\nor counterproductive, they are permissibly exercising their policymaking authority. But others who\nmight reach the same conclusion are failing to take race seriously.\nThe dissent states that \xe2\x80\x9c[t]he way to stop discrimination on the basis of race is to speak openly and\ncandidly on the subject of race.\xe2\x80\x9d And it urges that \xe2\x80\x9c[r]ace matters because of the slights, the snickers,\nthe silent judgments that reinforce that most crippling of thoughts: \xe2\x80\x98I do not belong here.\xe2\x80\x99\xe2\x80\x9d But it is not\n\xe2\x80\x9cout of touch with reality\xe2\x80\x9d to conclude that racial preferences may themselves have the debilitating\neffect of reinforcing precisely that doubt, and\xe2\x80\x94if so\xe2\x80\x94that the preferences do more harm than good.\nTo disagree with the dissent\xe2\x80\x99s views on the costs and benefits of racial preferences is not to \xe2\x80\x9cwish\naway, rather than confront\xe2\x80\x9d racial inequality. People can disagree in good faith on this issue, but it\nsimilarly does more harm than good to question the openness and candor of those on either side of\nthe debate.\nJUSTICE SCALIA, WITH WHOM JUSTICE THOMAS JOINS, CONCURRING IN THE JUDGMENT.\nIt has come to this. Called upon to explore the jurisprudential twilight zone between two errant\nlines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause\nof the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that\nthis case obliges us to say it), the question answers itself. \xe2\x80\x9cThe Constitution proscribes government\ndiscrimination on the basis of race, and state-provided education is no exception.\xe2\x80\x9d Grutter v. Bollinger\n(2003) (Scalia, J., concurring in part and dissenting in part). It is precisely this understanding\xe2\x80\x94the\ncorrect understanding\xe2\x80\x94of the federal Equal Protection Clause that the people of the State of Michigan\nhave adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.\nEven taking this Court\xe2\x80\x99s sorry line of race-based-admissions cases as a given, I find the question\npresented only slightly less strange: Does the Equal Protection Clause forbid a State from banning\na practice that the Clause barely\xe2\x80\x94and only provisionally\xe2\x80\x94permits? Reacting to those race-basedadmissions decisions, some States\xe2\x80\x94whether deterred by the prospect of costly litigation; aware\nthat Grutter\xe2\x80\x99s bell may soon toll; or simply opposed in principle to the notion of \xe2\x80\x9cbenign\xe2\x80\x9d racial\ndiscrimination\xe2\x80\x94have gotten out of the racial-preferences business altogether. And with our express\nencouragement: \xe2\x80\x9cUniversities in California, Florida, and Washington State, where racial preferences\nin admissions are prohibited by state law, are currently engaging in experimenting with a wide\nvariety of alternative approaches. Universities in other States can and should draw on the most\npromising aspects of these race-neutral alternatives as they develop.\xe2\x80\x9d Respondents seem to think this\nadmonition was merely in jest. The experiment, they maintain, is not only over; it never rightly began.\nNeither the people of the States nor their legislatures ever had the option of directing subordinate\npublic-university officials to cease considering the race of applicants, since that would deny members\nof those minority groups the option of enacting a policy designed to further their interest, thus\ndenying them the equal protection of the laws. Never mind that it is hotly disputed whether the\npractice of race-based admissions is ever in a racial minority\xe2\x80\x99s interest. And never mind that, were\n242 | Liberty, Equality, and Due Process: Third Edition\n\n\x0ca public university to stake its defense of a race-based-admissions policy on the ground that it was\ndesigned to benefit primarily minorities (as opposed to all students, regardless of color, by enhancing\ndiversity), we would hold the policy unconstitutional.\n* * * * I part ways with Hunter, Seattle, and (I think) the plurality for an additional reason: Each\nendorses a version of the proposition that a facially neutral law may deny equal protection solely\nbecause it has a disparate racial impact. Few equal-protection theories have been so squarely and\nsoundly rejected. \xe2\x80\x9cAn unwavering line of cases from this Court holds that a violation of the Equal\nProtection Clause requires state action motivated by discriminatory intent,\xe2\x80\x9d and that \xe2\x80\x9cofficial action\nwill not be held unconstitutional solely because it results in a racially disproportionate impact.\xe2\x80\x9d * * * *\nNotwithstanding our dozens of cases confirming the exception-less nature of the Washington v. Davis\nrule, the plurality opinion leaves ajar an effects-test escape hatch modeled after Hunter and Seattle,\nsuggesting that state action denies equal protection when it \xe2\x80\x9cha[s] the serious risk, if not purpose,\nof causing specific injuries on account of race,\xe2\x80\x9d or is either \xe2\x80\x9cdesigned to be used, or . . . likely to be\nused, to encourage infliction of injury by reason of race.\xe2\x80\x9d (emphasis added). Since these formulations\nenable a determination of an equal-protection violation where there is no discriminatory intent, they\nare inconsistent with the long Washington v. Davis line of cases.\nRespondents argue that we need not bother with the discriminatory-purpose test, since \xc2\xa7 26 may\nbe struck more straightforwardly as a racial \xe2\x80\x9cclassification.\xe2\x80\x9d Admitting (as they must) that \xc2\xa7 26 does\nnot on its face \xe2\x80\x9cdistribut[e] burdens or benefits on the basis of individual racial classifications,\xe2\x80\x9d\nParents Involved in Community Schools v. Seattle School Dist. No. 1 (2007), respondents rely on Seattle\xe2\x80\x99s\nstatement that \xe2\x80\x9cwhen the political process or the decisionmaking mechanism used to address racially\nconscious legislation\xe2\x80\x94and only such legislation\xe2\x80\x94is singled out for peculiar and disadvantageous\ntreatment,\xe2\x80\x9d then that \xe2\x80\x9csingling out\xe2\x80\x9d is a racial classification. But this is just the political-process theory\nbedecked in different doctrinal dress. A law that \xe2\x80\x9cneither says nor implies that persons are to be\ntreated differently on account of their race\xe2\x80\x9d is not a racial classification. That is particularly true of\nstatutes mandating equal treatment. \xe2\x80\x9c[A] law that prohibits the State from classifying individuals by\nth\n\nrace . . . a fortiori does not classify individuals by race.\xe2\x80\x9d {Coalition for Economic Equity v. Wilson, 9\nCircuit (O\xe2\x80\x99Scannlain, J.)}.\n\nThus, the question in this case, as in every case in which neutral state action is said to deny equal\nprotection on account of race, is whether the action reflects a racially discriminatory purpose. Seattle\nstresses that \xe2\x80\x9csingling out the political processes affecting racial issues for uniquely disadvantageous\ntreatment inevitably raises dangers of impermissible motivation.\xe2\x80\x9d True enough, but that motivation\nmust be proved. And respondents do not have a prayer of proving it here. The District Court noted\nthat, under \xe2\x80\x9cconventional equal protection\xe2\x80\x9d doctrine, the suit was \xe2\x80\x9cdoom[ed].\xe2\x80\x9d Though the Court\nof Appeals did not opine on this question, I would not leave it for them on remand. In my view,\nany law expressly requiring state actors to afford all persons equal protection of the laws (such as\nInitiative 350 in Seattle, though not the charter amendment in Hunter) does not\xe2\x80\x94cannot\xe2\x80\x94deny \xe2\x80\x9cto\nany person . . . equal protection of the laws,\xe2\x80\x9d U. S. Const., Amdt. 14, \xc2\xa7 1, regardless of whatever evidence\nof seemingly foul purposes plaintiffs may cook up in the trial court.\nAs Justice Harlan observed over a century ago, \xe2\x80\x9c[o]ur Constitution is color-blind, and neither knows\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 243\n\n\x0cnor tolerates classes among citizens.\xe2\x80\x9d Plessy v. Ferguson (1896) (dissenting opinion). The people of\nMichigan wish the same for their governing charter. It would be shameful for us to stand in their way.\nJUSTICE BREYER, CONCURRING IN THE JUDGMENT.\n* * * * I continue to believe that the Constitution permits, though it does not require, the use of\nthe kind of race-conscious programs that are now barred by the Michigan Constitution. The serious\neducational problems that faced Americans at the time this Court decided Grutter endure. * * * *\nThis case, in contrast {to Hunter and Seattle} does not involve a reordering of the political process;\nit does not in fact involve the movement of decisionmaking from one political level to another.\nRather, here, Michigan law delegated broad policymaking authority to elected university boards, see\nMich. Const., Art. VIII, \xc2\xa7 5, but those boards delegated admissions-related decisionmaking authority\nto unelected university faculty members and administrators. Although the boards unquestionably\nretained the power to set policy regarding race-conscious admissions, in fact faculty members and\nadministrators set the race-conscious admissions policies in question. (It is often true that elected\nbodies\xe2\x80\x94including, for example, school boards, city councils, and state legislatures\xe2\x80\x94have the power\nto enact policies, but in fact delegate that power to administrators.) Although at limited times\nthe university boards were advised of the content of their race-conscious admissions policies, to\nmy knowledge no board voted to accept or reject any of those policies. Thus, un-elected faculty\nmembers and administrators, not voters or their elected representatives, adopted the race-conscious\nadmissions programs affected by Michigan\xe2\x80\x99s constitutional amendment. The amendment took\ndecisionmaking authority away from these unelected actors and placed it in the hands of the voters.\nWhy does this matter? For one thing, considered conceptually, the doctrine set forth in Hunter\nand Seattle does not easily fit this case. In those cases minorities had participated in the political\nprocess and they had won. The majority\xe2\x80\x99s subsequent reordering of the political process repealed\nthe minority\xe2\x80\x99s successes and made it more difficult for the minority to succeed in the future. The\nmajority thereby diminished the minority\xe2\x80\x99s ability to participate meaningfully in the electoral process.\nBut one cannot as easily characterize the movement of the decisionmaking mechanism at issue\nhere\xe2\x80\x94from an administrative process to an electoral process\xe2\x80\x94as diminishing the minority\xe2\x80\x99s ability\nto participate meaningfully in the political process. There is no prior electoral process in which the\nminority participated.\nFor another thing, to extend the holding of Hunter and Seattle to reach situations in which\ndecisionmaking authority is moved from an administrative body to a political one would pose\nsignificant difficulties.\n****\nFinally, the principle that underlies Hunter and Seattle runs up against a competing principle,\ndiscussed above. This competing principle favors decisionmaking though the democratic process. Just\nas this principle strongly supports the right of the people, or their elected representatives, to adopt\nrace-conscious policies for reasons of inclusion, so must it give them the right to vote not to do so.\n\n244 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cAs I have said, my discussion here is limited to circumstances in which decisionmaking is moved from\nan un-elected administrative body to a politically responsive one, and in which the targeted raceconscious admissions programs consider race solely in order to obtain the educational benefits of a\ndiverse student body. We need now decide no more than whether the Federal Constitution permits\nMichigan to apply its constitutional amendment in those circumstances. I would hold that it does.\nTherefore, I concur in the judgment of the Court.\nJUSTICE SOTOMAYOR, WITH WHOM JUSTICE GINSBURG JOINS, DISSENTING.\nWe are fortunate to live in a democratic society. But without checks, democratically approved\nlegislation can oppress minority groups. For that reason, our Constitution places limits on what a\nmajority of the people may do. This case implicates one such limit: the guarantee of equal protection\nof the laws. Although that guarantee is traditionally understood to prohibit intentional discrimination\nunder existing laws, equal protection does not end there. Another fundamental strand of our equal\nprotection jurisprudence focuses on process, securing to all citizens the right to participate\nmeaningfully and equally in self-government. That right is the bedrock of our democracy, for it\npreserves all other rights.\nYet to know the history of our Nation is to understand its long and lamentable record of stymieing\nthe right of racial minorities to participate in the political process. At first, the majority acted with\nan open, invidious purpose. Notwithstanding the command of the Fifteenth Amendment, certain\nStates shut racial minorities out of the political process altogether by withholding the right to vote.\nThis Court intervened to preserve that right. The majority tried again, replacing outright bans on\nvoting with literacy tests, good character requirements, poll taxes, and gerrymandering. The Court\nwas not fooled; it invalidated those measures, too. The majority persisted. This time, although it\nallowed the minority access to the political process, the majority changed the ground rules of the\nprocess so as to make it more difficult for the minority, and the minority alone, to obtain policies\ndesigned to foster racial integration. Although these political restructurings may not have been\ndiscriminatory in purpose, the Court reaffirmed the right of minority members of our society to\nparticipate meaningfully and equally in the political process.\nThis case involves this last chapter of discrimination: A majority of the Michigan electorate changed\nthe basic rules of the political process in that State in a manner that uniquely disadvantaged racial\nminorities. Prior to the enactment of the constitutional initiative at issue here, all of the admissions\npolicies of Michigan\xe2\x80\x99s public colleges and universities\xe2\x80\x94including race-sensitive admissions\npolicies\xe2\x80\x94were in the hands of each institution\xe2\x80\x99s governing board. The members of those boards are\nnominated by political parties and elected by the citizenry in statewide elections. After over a century\nof being shut out of Michigan\xe2\x80\x99s institutions of higher education, racial minorities in Michigan had\nsucceeded in persuading the elected board representatives to adopt admissions policies that took into\naccount the benefits of racial diversity. And this Court twice blessed such efforts\xe2\x80\x94first in Regents of\nUniv. of Cal. v. Bakke (1978), and again in Grutter v. Bollinger (2003), a case that itself concerned a\nMichigan admissions policy.\nIn the wake of Grutter, some voters in Michigan set out to eliminate the use of race-sensitive\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 245\n\n\x0cadmissions policies. Those voters were of course free to pursue this end in any number of ways.\nFor example, they could have persuaded existing board members to change their minds through\nindividual or grassroots lobbying efforts, or through general public awareness campaigns. Or they\ncould have mobilized efforts to vote uncooperative board members out of office, replacing them with\nmembers who would share their desire to abolish race-sensitive admissions policies. When this Court\nholds that the Constitution permits a particular policy, nothing prevents a majority of a State\xe2\x80\x99s voters\nfrom choosing not to adopt that policy. Our system of government encourages\xe2\x80\x94and indeed, depends\non\xe2\x80\x94that type of democratic action.\nBut instead, the majority of Michigan voters changed the rules in the middle of the game,\nreconfiguring the existing political process in Michigan in a manner that burdened racial minorities.\nThey did so in the 2006 election by amending the Michigan Constitution to enact Art. I, \xc2\xa7 26, which\nprovides in relevant part that Michigan\xe2\x80\x99s public universities \xe2\x80\x9cshall not discriminate against, or grant\npreferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national\norigin in the operation of public employment, public education, or public contracting.\xe2\x80\x9d\nAs a result of \xc2\xa7 26, there are now two very different processes through which a Michigan citizen is\npermitted to influence the admissions policies of the State\xe2\x80\x99s universities: one for persons interested\nin race-sensitive admissions policies and one for everyone else. A citizen who is a University of\nMichigan alumnus, for instance, can advocate for an admissions policy that considers an applicant\xe2\x80\x99s\nlegacy status by meeting individually with members of the Board of Regents to convince them of her\nviews, by joining with other legacy parents to lobby the Board, or by voting for and supporting Board\ncandidates who share her position. The same options are available to a citizen who wants the Board to\nadopt admissions policies that consider athleticism, geography, area of study, and so on. The one and\nonly policy a Michigan citizen may not seek through this long-established process is a race-sensitive\nadmissions policy that considers race in an individualized manner when it is clear that race-neutral\nalternatives are not adequate to achieve diversity. For that policy alone, the citizens of Michigan must\nundertake the daunting task of amending the State Constitution.\nOur precedents do not permit political restructurings that create one process for racial minorities\nand a separate, less burdensome process for everyone else. This Court has held that the Fourteenth\nAmendment does not tolerate \xe2\x80\x9ca political structure that treats all individuals as equals, yet more\nsubtly distorts governmental processes in such a way as to place special burdens on the ability\nof minority groups to achieve beneficial legislation.\xe2\x80\x9d Washington v. Seattle School Dist. No. 1 (1982).\nSuch restructuring, the Court explained, \xe2\x80\x9cis no more permissible than denying [the minority] the\n[right to] vote, on an equal basis with others.\xe2\x80\x9d Hunter v. Erickson (1969). In those cases\xe2\x80\x94Hunter\nand Seattle\xe2\x80\x94the Court recognized what is now known as the \xe2\x80\x9cpolitical-process doctrine\xe2\x80\x9d: When the\nmajority reconfigures the political process in a manner that burdens only a racial minority, that\nalteration triggers strict judicial scrutiny.\nToday, disregarding stare decisis, a majority of the Court effectively discards those precedents. The\nplurality does so, it tells us, because the freedom actually secured by the Constitution is the freedom\nof self-government\xe2\x80\x94because the majority of Michigan citizens \xe2\x80\x9cexercised their privilege to enact laws\nas a basic exercise of their democratic power.\xe2\x80\x9d It would be \xe2\x80\x9cdemeaning to the democratic process,\xe2\x80\x9d the\n\n246 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cplurality concludes, to disturb that decision in any way. This logic embraces majority rule without an\nimportant constitutional limit.\nThe plurality\xe2\x80\x99s decision fundamentally misunderstands the nature of the injustice worked by \xc2\xa7 26. This\ncase is not, as the plurality imagines, about \xe2\x80\x9cwho may resolve\xe2\x80\x9d the debate over the use of race in\nhigher education admissions. I agree wholeheartedly that nothing vests the resolution of that debate\nexclusively in the courts or requires that we remove it from the reach of the electorate. Rather, this\ncase is about how the debate over the use of race-sensitive admissions policies may be resolved\xe2\x80\x94that\nis, it must be resolved in constitutionally permissible ways. While our Constitution does not guarantee\nminority groups victory in the political process, it does guarantee them meaningful and equal access\nto that process. It guarantees that the majority may not win by stacking the political process against\nminority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of\nits goals\xe2\x80\x94here, educational diversity that cannot reasonably be accomplished through race-neutral\nmeasures. Today, by permitting a majority of the voters in Michigan to do what our Constitution\nforbids, the Court ends the debate over race-sensitive admissions policies in Michigan in a manner\nthat contravenes constitutional protections long recognized in our precedents.\nLike the plurality, I have faith that our citizenry will continue to learn from this Nation\xe2\x80\x99s regrettable\nhistory; that it will strive to move beyond those injustices towards a future of equality. And I, too,\nbelieve in the importance of public discourse on matters of public policy. But I part ways with the\nplurality when it suggests that judicial intervention in this case \xe2\x80\x9cimpede[s]\xe2\x80\x9d rather than \xe2\x80\x9cadvance[s]\xe2\x80\x9d\nthe democratic process and the ultimate hope of equality. I firmly believe that our role as judges\nincludes policing the process of self-government and stepping in when necessary to secure the\nconstitutional guarantee of equal protection. Because I would do so here, I respectfully dissent.\n\nI\nFor much of its history, our Nation has denied to many of its citizens the right to participate\nmeaningfully and equally in its politics. This is a history we strive to put behind us. But it is a history\nthat still informs the society we live in, and so it is one we must address with candor. Because the\npolitical-process doctrine is best understood against the backdrop of this history, I will briefly trace\nits course.\nThe Fifteenth Amendment, ratified after the Civil War, promised to racial minorities the right to\nvote. But many States ignored this promise. In addition to outright tactics of fraud, intimidation, and\nviolence, there are countless examples of States categorically denying to racial minorities access to\nthe political process. * * * *\nThis Court did not stand idly by. In Alabama, for example, the legislature responded to increased black\nvoter registration in the city of Tuskegee by amending the State Constitution to authorize legislative\nabolition of the county in which Tuskegee was located, Ala. Const. Amdt. 132 (1957), repealed by Ala.\nConst. Amdt. 406 (1982), and by redrawing the city\xe2\x80\x99s boundaries to remove all the black voters \xe2\x80\x9cwhile\nnot removing a single white voter,\xe2\x80\x9d Gomillion v. Lightfoot (1960). The Court intervened, finding it\n\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 247\n\n\x0c\xe2\x80\x9cinconceivable that guaranties embedded in the Constitution\xe2\x80\x9d could be \xe2\x80\x9cmanipulated out of existence\xe2\x80\x9d\nby being \xe2\x80\x9ccloaked in the garb of [political] realignment.\xe2\x80\x9d\nThis Court\xe2\x80\x99s landmark ruling in Brown v. Board of Education (1954) triggered a new era of political\nrestructuring, this time in the context of education. * * * *\nThe Court remained true to its command in Brown. In Arkansas, for example, it enforced a\ndesegregation order against the Little Rock school board. Cooper v. Aaron (1958). On the very day the\nCourt announced that ruling, the Arkansas Legislature responded by changing the rules. It enacted a\nlaw permitting the Governor to close any public school in the State, and stripping local school districts\nof their decisionmaking authority so long as the Governor determined that local officials could not\nmaintain \xe2\x80\x9c\xe2\x80\x98a general, suitable, and efficient educational system.\xe2\x80\x99\xe2\x80\x9d The then-Governor immediately\nclosed all of Little Rock\xe2\x80\x99s high schools.\nThe States\xe2\x80\x99 political restructuring efforts in the 1960\xe2\x80\x99s and 1970\xe2\x80\x99s went beyond the context of\neducation. Many States tried to suppress the political voice of racial minorities more generally by\nreconfiguring the manner in which they filled vacancies in local offices, often transferring authority\nfrom the electorate (where minority citizens had a voice at the local level) to the States\xe2\x80\x99 executive\nbranch (where minorities wielded little if any influence). * * * *\n\nII\nIt was in this historical context that the Court intervened in Hunter v. Erickson, (1969), and Washington\nv. Seattle School Dist. No. 1 (1982). Together, Hunter and Seattle recognized a fundamental strand of this\nCourt\xe2\x80\x99s equal protection jurisprudence: the political-process doctrine. To understand that doctrine\nfully, it is necessary to set forth in detail precisely what the Court had before it, and precisely what it\nsaid. For to understand Hunter and Seattle is to understand why those cases straightforwardly resolve\nthis one.\n****\n\nA\n{extensive discussion of Hunter and Seattle omitted}\n\nB\nHunter and Seattle vindicated a principle that is as elementary to our equal protection jurisprudence\nas it is essential: The majority may not suppress the minority\xe2\x80\x99s right to participate on equal terms\nin the political process. Under this doctrine, governmental action deprives minority groups of equal\nprotection when it (1) has a racial focus, targeting a policy or program that \xe2\x80\x9cinures primarily to the\nbenefit of the minority,\xe2\x80\x9d Seattle; and (2) alters the political process in a manner that uniquely burdens\n248 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cracial minorities\xe2\x80\x99 ability to achieve their goals through that process. A faithful application of the\ndoctrine resoundingly resolves this case in respondents\xe2\x80\x99 favor.\n\n1\nSection 26 has a \xe2\x80\x9cracial focus.\xe2\x80\x9d That is clear from its text, which prohibits Michigan\xe2\x80\x99s public colleges\nand universities from \xe2\x80\x9cgrant[ing] preferential treatment to any individual or group on the basis of\nrace.\xe2\x80\x9d Mich. Const., Art. I, \xc2\xa7 26. Like desegregation of public schools, race-sensitive admissions policies\n\xe2\x80\x9cinur[e] primarily to the benefit of the minority,\xe2\x80\x9d as they are designed to increase minorities\xe2\x80\x99 access to\ninstitutions of higher education.\nPetitioner argues that race-sensitive admissions policies cannot \xe2\x80\x9cinur[e] primarily to the benefit of\nthe minority,\xe2\x80\x9d as the Court has upheld such policies only insofar as they further \xe2\x80\x9cthe educational\nbenefits that flow from a diverse student body,\xe2\x80\x9d Grutter. But there is no conflict between this Court\xe2\x80\x99s\npronouncement in Grutter and the common-sense reality that race-sensitive admissions policies\nbenefit minorities. Rather, race-sensitive admissions policies further a compelling state interest\nin achieving a diverse student body precisely because they increase minority enrollment, which\nnecessarily benefits minority groups. In other words, constitutionally permissible race-sensitive\nadmissions policies can both serve the compelling interest of obtaining the educational benefits that\nflow from a diverse student body, and inure to the benefit of racial minorities. There is nothing\nmutually exclusive about the two.\nIt is worth emphasizing, moreover, that \xc2\xa7 26 is relevant only to admissions policies that have survived\nstrict scrutiny under Grutter; other policies, under this Court\xe2\x80\x99s rulings, would be forbidden with or\nwithout \xc2\xa7 26. A Grutter-compliant admissions policy must use race flexibly, not maintain a quota;\nmust be limited in time; and must be employed only after \xe2\x80\x9cserious, good faith consideration of\nworkable race-neutral alternatives.\xe2\x80\x9d The policies banned by \xc2\xa7 26 meet all these requirements and thus\nalready constitute the least restrictive ways to advance Michigan\xe2\x80\x99s compelling interest in diversity in\nhigher education.\n\n2\n{Extensive citations and quotations from amicus briefs and secondary sources in this section omitted}.\nSection 26 restructures the political process in Michigan in a manner that places unique burdens on\nracial minorities. It establishes a distinct and more burdensome political process for the enactment of\nadmissions plans that consider racial diversity.\nLong before the enactment of \xc2\xa7 26, the Michigan Constitution granted plenary authority over all\nmatters relating to Michigan\xe2\x80\x99s public universities, including admissions criteria, to each university\xe2\x80\x99s\neight-member governing board.\n* * * * The boards are indisputably a part of the political process in Michigan.\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 249\n\n\x0c****\nBefore the enactment of \xc2\xa7 26, Michigan\xe2\x80\x99s political structure permitted both supporters and opponents\nof race-sensitive admissions policies to vote for their candidates of choice and to lobby the elected\nand politically accountable boards. Section 26 reconfigured that structure. After \xc2\xa7 26, the boards\nretain plenary authority over all admissions criteria except for race-sensitive admissions policies. To\nchange admissions policies on this one issue, a Michigan citizen must instead amend the Michigan\nConstitution. That is no small task. To place a proposed constitutional amendment on the ballot\nrequires either the support of two-thirds of both Houses of the Michigan Legislature or a vast number\nof signatures from Michigan voters\xe2\x80\x9410 percent of the total number of votes cast in the preceding\ngubernatorial election. See Mich. Const., Art. XII, \xc2\xa7\xc2\xa7 1, 2. Since more than 3.2 million votes were cast\nin the 2010 election for Governor, more than 320,000 signatures are currently needed to win a ballot\nspot. Moreover, \xe2\x80\x9c[t]o account for invalid and duplicative signatures, initiative sponsors \xe2\x80\x98need to obtain\nsubstantially more than the actual required number of signatures, typically by a 25% to 50% margin.\xe2\x80\x99 \xe2\x80\x9d\nAnd the costs of qualifying an amendment are significant. For example, \xe2\x80\x9c[t]he vast majority of petition\nefforts . . . require initiative sponsors to hire paid petition circulators, at significant expense.\xe2\x80\x9d In\naddition to the cost of collecting signatures, campaigning for a majority of votes is an expensive\nendeavor, and \xe2\x80\x9corganizations advocating on behalf of marginalized groups remain . . . outmoneyed\nby corporate, business, and professional organizations.\xe2\x80\x9d In 2008, for instance, over $800 million was\nspent nationally on state-level initiative and referendum campaigns, nearly $300 million more than\nwas spent in the 2006 cycle. Donovan 98. \xe2\x80\x9cIn several states, more money [is] spent on ballot initiative\ncampaigns than for all other races for political office combined.\xe2\x80\x9d Indeed, the amount spent on statelevel initiative and referendum campaigns in 2008 eclipsed the $740.6 million spent by President\nObama in his 2008 presidential campaign.\nMichigan\xe2\x80\x99s Constitution has only rarely been amended through the initiative process. Between 1914\nand 2000, voters have placed only 60 statewide initiatives on the Michigan ballot, of which only 20\nhave passed. Minority groups face an especially uphill battle. In fact, \xe2\x80\x9c[i]t is difficult to find even a\nsingle statewide initiative in any State in which voters approved policies that explicitly favor racial or\nethnic minority groups.\xe2\x80\x9d\nThis is the onerous task that \xc2\xa7 26 forces a Michigan citizen to complete in order to change the\nadmissions policies of Michigan\xe2\x80\x99s public colleges and universities with respect to racial sensitivity.\nWhile substantially less grueling paths remain open to those advocating for any other admissions\npolicies, a constitutional amendment is the only avenue by which race-sensitive admissions policies\nmay be obtained. The effect of \xc2\xa7 26 is that a white graduate of a public Michigan university who\nwishes to pass his historical privilege on to his children may freely lobby the board of that university\nin favor of an expanded legacy admissions policy, whereas a black Michigander who was denied the\nopportunity to attend that very university cannot lobby the board in favor of a policy that might give\nhis children a chance that he never had and that they might never have absent that policy.\nSuch reordering of the political process contravenes Hunter and Seattle. Where, as here, the majority\nalters the political process to the detriment of a racial minority, the governmental action is subject\n\n250 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cto strict scrutiny. Michigan does not assert that \xc2\xa7 26 satisfies a compelling state interest. That should\nsettle the matter.\n\nC\n1\nThe plurality sees it differently. Disregarding the language used in Hunter, the plurality asks us to\ncontort that case into one that \xe2\x80\x9crests on the unremarkable principle that the State may not alter the\nprocedures of government to target racial minorities.\xe2\x80\x9d And the plurality recasts Seattle \xe2\x80\x9cas a case in\nwhich the state action in question . . . had the serious risk, if not purpose, of causing specific injuries\non account of race.\xe2\x80\x9d According to the plurality, the Hunter and Seattle Courts were not concerned with\nefforts to reconfigure the political process to the detriment of racial minorities; rather, those cases\ninvalidated governmental actions merely because they reflected an invidious purpose to discriminate.\nThis is not a tenable reading of those cases.\nThe plurality identifies \xe2\x80\x9cinvidious discrimination\xe2\x80\x9d as the \xe2\x80\x9cnecessary result\xe2\x80\x9d of the restructuring in\nHunter. It is impossible to assess whether the housing amendment in Hunter was motivated by\ndiscriminatory purpose, for the opinion does not discuss the question of intent. What is obvious,\nhowever, is that the possibility of invidious discrimination played no role in the Court\xe2\x80\x99s reasoning.\nWe ordinarily understand our precedents to mean what they actually say, not what we later think\nthey could or should have said. The Hunter Court was clear about why it invalidated the Akron\ncharter amendment: It was impermissible as a restructuring of the political process, not as an action\nmotivated by discriminatory intent.\nSimilarly, the plurality disregards what Seattle actually says and instead opines that \xe2\x80\x9cthe political\nrestriction in question was designed to be used, or was likely to be used, to encourage infliction of\ninjury by reason of race.\xe2\x80\x9d Here, the plurality derives its conclusion not from Seattle itself, but from\nevidence unearthed more than a quarter-century later in Parents Involved in Community Schools v.\nSeattle School Dist. No. 1 (2007). * * * * It follows, according to the plurality, that Seattle\xe2\x80\x99s desegregation\nplan was constitutionally required, so that the initiative halting the plan was an instance of invidious\ndiscrimination aimed at inflicting a racial injury.\n* * * * And what now of the political-process doctrine? After the plurality\xe2\x80\x99s revision of Hunter and\nSeattle, it is unclear what is left. The plurality certainly does not tell us. On this point, and this point\nonly, I agree with Justice Scalia that the plurality has rewritten those precedents beyond recognition.\n\n2\nJustice Breyer concludes that Hunter and Seattle do not apply. * * * *\nThe salient point is this: Although the elected and politically accountable boards may well entrust\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 251\n\n\x0cuniversity officials with certain day-to-day admissions responsibilities, they often weigh in on\nadmissions policies themselves and, at all times, they retain complete supervisory authority over\nuniversity officials and over all admissions decisions. * * * *\n\nIII\nThe political-process doctrine not only resolves this case as a matter of stare decisis; it is correct as a\nmatter of first principles.\n\nA\nUnder our Constitution, majority rule is not without limit. Our system of government is predicated\non an equilibrium between the notion that a majority of citizens may determine governmental policy\nthrough legislation enacted by their elected representatives, and the overriding principle that there\nare nonetheless some things the Constitution forbids even a majority of citizens to do. The politicalprocess doctrine, grounded in the Fourteenth Amendment, is a central check on majority rule.\nThe Fourteenth Amendment instructs that all who act for the government may not \xe2\x80\x9cdeny to any\nperson . . . the equal protection of the laws.\xe2\x80\x9d We often think of equal protection as a guarantee that the\ngovernment will apply the law in an equal fashion\xe2\x80\x94that it will not intentionally discriminate against\nminority groups. But equal protection of the laws means more than that; it also secures the right of all\ncitizens to participate meaningfully and equally in the process through which laws are created.\nFew rights are as fundamental as the right to participate meaningfully and equally in the process\nof government. See Yick Wo v. Hopkins (1886) (political rights are \xe2\x80\x9cfundamental\xe2\x80\x9d because they are\n\xe2\x80\x9cpreservative of all rights\xe2\x80\x9d). That right is the bedrock of our democracy, recognized from its very\ninception. See J. Ely, Democracy and Distrust 87 (1980) (the Constitution \xe2\x80\x9cis overwhelmingly\nconcerned, on the one hand, with procedural fairness in the resolution of individual disputes,\xe2\x80\x9d and on\nthe other, \xe2\x80\x9cwith ensuring broad participation in the processes and distributions of government\xe2\x80\x9d).\nThis should come as no surprise. The political process is the channel of change. It is the means by\nwhich citizens may both obtain desirable legislation and repeal undesirable legislation. Of course, we\ndo not expect minority members of our society to obtain every single result they seek through the\npolitical process\xe2\x80\x94not, at least, when their views conflict with those of the majority. The minority\nplainly does not have a right to prevail over majority groups in any given political contest. But the\nminority does have a right to play by the same rules as the majority. It is this right that Hunter and\nSeattle so boldly vindicated.\nThis right was hardly novel at the time of Hunter and Seattle. For example, this Court focused on\nthe vital importance of safeguarding minority groups\xe2\x80\x99 access to the political process in United States\nv. Carolene Products Co. (1938), a case that predated Hunter by 30 years. In a now-famous footnote,\nthe Court explained that while ordinary social and economic legislation carries a presumption of\nconstitutionality, the same may not be true of legislation that offends fundamental rights or targets\n252 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cminority groups. Citing cases involving restrictions on the right to vote, restraints on the\ndissemination of information, interferences with political organizations, and prohibition of peaceable\nassembly, the Court recognized that \xe2\x80\x9clegislation which restricts those political processes which can\nordinarily be expected to bring about repeal of undesirable legislation\xe2\x80\x9d could be worthy of \xe2\x80\x9cmore\nexacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are\nmost other types of legislation.\xe2\x80\x9d Carolene Products, n. 4, see also Ely (explaining that \xe2\x80\x9c[p]aragraph\ntwo {of Carolene Products footnote 4} suggests that it is an appropriate function of the Court to\nkeep the machinery of democratic government running as it should, to make sure the channels\nof political participation and communication are kept open\xe2\x80\x9d). The Court also noted that \xe2\x80\x9cprejudice\nagainst discrete and insular minorities may be a special condition, which tends seriously to curtail the\noperation of those political processes ordinarily to be relied upon to protect minorities, and which\nmay call for a correspondingly more searching judicial inquiry.\xe2\x80\x9d Carolene Products, n. 4, see also Ely\n(explaining that \xe2\x80\x9c[p]aragraph three {of Carolene Products footnote 4} suggests that the Court should\nalso concern itself with what majorities do to minorities, particularly mentioning laws \xe2\x80\x98directed at\xe2\x80\x99\nreligious, national and racial minorities and those infected by prejudice against them\xe2\x80\x9d).\nThe values identified in Carolene Products lie at the heart of the political-process doctrine. Indeed,\nSeattle explicitly relied on Carolene Products. These values are central tenets of our equal protection\njurisprudence.\nOur cases recognize at least three features of the right to meaningful participation in the political\nprocess. Two of them, thankfully, are uncontroversial. First, every eligible citizen has a right to vote.\nSee Shaw v. Reno (1993). This, woefully, has not always been the case. But it is a right no one would\ntake issue with today. Second, the majority may not make it more difficult for the minority to exercise\nthe right to vote. This, too, is widely accepted. After all, the Court has invalidated grandfather clauses,\ngood character requirements, poll taxes, and gerrymandering provisions. The third feature, the one\nthe plurality dismantles today, is that a majority may not reconfigure the existing political process in\na manner that creates a two-tiered system of political change, subjecting laws designed to protect\nor benefit discrete and insular minorities to a more burdensome political process than all other laws.\nThis is the political-process doctrine of Hunter and Seattle.\nMy colleagues would stop at the second. The plurality embraces the freedom of \xe2\x80\x9cself-government\xe2\x80\x9d\nwithout limits. And Justice Scalia values a \xe2\x80\x9cnear-limitless\xe2\x80\x9d notion of state sovereignty. The wrong\nsought to be corrected by the political-process doctrine, they say, is not one that should concern\nus and is in any event beyond the reach of the Fourteenth Amendment. As they see it, the Court\xe2\x80\x99s\nrole in protecting the political process ends once we have removed certain barriers to the minority\xe2\x80\x99s\nparticipation in that process. Then, they say, we must sit back and let the majority rule without the\nkey constitutional limit recognized in Hunter and Seattle.\nThat view drains the Fourteenth Amendment of one of its core teachings. Contrary to today\xe2\x80\x99s decision,\nprotecting the right to meaningful participation in the political process must mean more than simply\nremoving barriers to participation. It must mean vigilantly policing the political process to ensure that\nthe majority does not use other methods to prevent minority groups from partaking in that process\non equal footing. Why? For the same reason we guard the right of every citizen to vote. If \xe2\x80\x9c[e]fforts\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 253\n\n\x0cto reduce the impact of minority votes, in contrast to direct attempts to block access to the ballot,\xe2\x80\x9d\nwere \xe2\x80\x9c\xe2\x80\x98second-generation barriers\xe2\x80\x99\xe2\x80\x9d to minority voting, Shelby County v. Holder (2013) (Ginsburg, J.,\ndissenting) efforts to reconfigure the political process in ways that uniquely disadvantage minority\ngroups who have already long been disadvantaged are third-generation barriers. For as the Court\nrecognized in Seattle, \xe2\x80\x9cminorities are no less powerless with the vote than without it when a racial\ncriterion is used to assign governmental power in such a way as to exclude particular racial groups\n\xe2\x80\x98from effective participation in the political proces[s].\xe2\x80\x99\xe2\x80\x9d\nTo accept the first two features of the right to meaningful participation in the political process, while\nrenouncing the third, paves the way for the majority to do what it has done time and again throughout\nour Nation\xe2\x80\x99s history: afford the minority the opportunity to participate, yet manipulate the ground\nrules so as to ensure the minority\xe2\x80\x99s defeat. This is entirely at odds with our idea of equality under the\nlaw.\nTo reiterate, none of this is to say that the political-process doctrine prohibits the exercise of\ndemocratic self-government. Nothing prevents a majority of citizens from pursuing or obtaining\nits preferred outcome in a political contest. Here, for instance, I agree with the plurality that\nMichiganders who were unhappy with Grutter were free to pursue an end to race-sensitive\nadmissions policies in their State. They were free to elect governing boards that opposed racesensitive admissions policies or, through public discourse and dialogue, to lobby the existing boards\ntoward that end. They were also free to remove from the boards the authority to make any decisions\nwith respect to admissions policies, as opposed to only decisions concerning race-sensitive\nadmissions policies. But what the majority could not do, consistent with the Constitution, is change\nthe ground rules of the political process in a manner that makes it more difficult for racial minorities\nalone to achieve their goals. In doing so, the majority effectively rigs the contest to guarantee a\nparticular outcome. That is the very wrong the political-process doctrine seeks to remedy. The\ndoctrine \xe2\x80\x9chews to the unremarkable notion that when two competitors are running a race, one may\nnot require the other to run twice as far or to scale obstacles not present in the first runner\xe2\x80\x99s course.\xe2\x80\x9d\n{quote from 6\n\nth\n\nCircuit opinion}.\n\nB\nThe political-process doctrine also follows from the rest of our equal protection jurisprudence\xe2\x80\x94in\nparticular, our reapportionment and vote dilution cases. * * * *\n\nIV\nMy colleagues claim that the political-process doctrine is unadministrable and contrary to our more\nrecent equal protection precedents. It is only by not acknowledging certain strands of our\njurisprudence that they can reach such a conclusion.\n\n254 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cA\nStart with the claim that Hunter and Seattle are no longer viable because of the cases that have\ncome after them. I note that in the view of many, it is those precedents that have departed from\nthe mandate of the Equal Protection Clause in the first place, by applying strict scrutiny to actions\ndesigned to benefit rather than burden the minority. See Gratz (Ginsburg, J., dissenting) (\xe2\x80\x9c[A]s I see\nit, government decisionmakers may properly distinguish between policies of exclusion and inclusion.\nActions designed to burden groups long denied full citizenship stature are not sensibly ranked\nwith measures taken to hasten the day when entrenched discrimination and its aftereffects have\nbeen extirpated\xe2\x80\x9d (citation omitted)); id., at 282 (Breyer, J., concurring in judgment) (\xe2\x80\x9cI agree. . . that,\nin implementing the Constitution\xe2\x80\x99s equality instruction, government decisionmakers may properly\ndistinguish between policies of inclusion and exclusion, for the former are more likely to prove\nconsistent with the basic constitutional obligation that the law respect each individual equally\xe2\x80\x9d\n(citation omitted)); Adarand Constructors, Inc. v. Pe\xc3\xb1a (1995) (Stevens, J., dissenting) (\xe2\x80\x9cThere is no moral\nor constitutional equivalence between a policy that is designed to perpetuate a caste system and\none that seeks to eradicate racial subordination. Invidious discrimination is an engine of oppression,\nsubjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based\npreferences reflect the opposite impulse: a desire to foster equality in society\xe2\x80\x9d). * * * *\nBut even assuming that strict scrutiny should apply to policies designed to benefit racial minorities,\nthat view is not inconsistent with Hunter and Seattle. For nothing the Court has said in the last 32\nyears undermines the principles announced in those cases.\n{extended discussion of Scalia\xe2\x80\x99s opinion omitted}\n\nB\n* * * * My colleagues are of the view that we should leave race out of the picture entirely and let\nthe voters sort it out. We have seen this reasoning before. See Parents Involved (\xe2\x80\x9cThe way to stop\ndiscrimination on the basis of race is to stop discriminating on the basis of race\xe2\x80\x9d). It is a sentiment out\nof touch with reality, one not required by our Constitution, and one that has properly been rejected\nas \xe2\x80\x9cnot sufficient\xe2\x80\x9d to resolve cases of this nature. Id. (Kennedy, J., concurring in part and concurring in\njudgment). While \xe2\x80\x9c[t]he enduring hope is that race should not matter[,] the reality is that too often it\ndoes.\xe2\x80\x9d Id.\nRace matters. Race matters in part because of the long history of racial minorities\xe2\x80\x99 being denied access\nto the political process. And although we have made great strides, \xe2\x80\x9cvoting discrimination still exists;\nno one doubts that.\xe2\x80\x9d Shelby County.\nRace also matters because of persistent racial inequality in society\xe2\x80\x94inequality that cannot be ignored\nand that has produced stark socioeconomic disparities. See Gratz (Ginsburg, J., dissenting) (cataloging\nthe many ways in which \xe2\x80\x9cthe effects of centuries of law-sanctioned inequality remain painfully\nevident in our communities and schools,\xe2\x80\x9d in areas like employment, poverty, access to health care,\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 255\n\n\x0chousing, consumer transactions, and education); Adarand (Ginsburg, J., dissenting) (recognizing that\nthe \xe2\x80\x9clingering effects\xe2\x80\x9d of discrimination, \xe2\x80\x9creflective of a system of racial caste only recently ended, are\nevident in our workplaces, markets, and neighborhoods\xe2\x80\x9d).\nAnd race matters for reasons that really are only skin deep, that cannot be discussed any other way,\nand that cannot be wished away. Race matters to a young man\xe2\x80\x99s view of society when he spends his\nteenage years watching others tense up as he passes, no matter the neighborhood where he grew up.\nRace matters to a young woman\xe2\x80\x99s sense of self when she states her hometown, and then is pressed,\n\xe2\x80\x9cNo, where are you really from?\xe2\x80\x9d, regardless of how many generations her family has been in the\ncountry. Race matters to a young person addressed by a stranger in a foreign language, which he does\nnot understand because only English was spoken at home. Race matters because of the slights, the\nsnickers, the silent judgments that reinforce that most crippling of thoughts: \xe2\x80\x9cI do not belong here.\xe2\x80\x9d\nIn my colleagues\xe2\x80\x99 view, examining the racial impact of legislation only perpetuates racial\ndiscrimination. This refusal to accept the stark reality that race matters is regrettable. The way to\nstop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to\napply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.\nAs members of the judiciary tasked with intervening to carry out the guarantee of equal protection,\nwe ought not sit back and wish away, rather than confront, the racial inequality that exists in our\nsociety. It is this view that works harm, by perpetuating the facile notion that what makes race matter\nis acknowledging the simple truth that race does matter.\n\nV\nAlthough the only constitutional rights at stake in this case are process-based rights, the substantive\npolicy at issue is undeniably of some relevance to my colleagues. See plurality opinion (suggesting\nthat race-sensitive admissions policies have the \xe2\x80\x9cpotential to become . . . the source of the very\nresentments and hostilities based on race that this Nation seeks to put behind it\xe2\x80\x9d). I will therefore\nspeak in response.\n\nA\nFor over a century, racial minorities in Michigan fought to bring diversity to their State\xe2\x80\x99s public\ncolleges and universities. Before the advent of race-sensitive admissions policies, those institutions,\nlike others around the country, were essentially segregated. In 1868, two black students were admitted\nto the University of Michigan, the first of their race. In 1935, over six decades later, there were still\nonly 35 black students at the University. By 1954, this number had risen to slightly below 200. And by\n1966, to around 400, among a total student population of roughly 32,500\xe2\x80\x94barely over 1 percent. The\nnumbers at the University of Michigan Law School are even more telling. During the 1960\xe2\x80\x99s, the Law\nSchool produced 9 black graduates among a total of 3,041\xe2\x80\x94less than three-tenths of 1 percent.\nThe housing and extracurricular policies at these institutions also perpetuated open segregation. For\n256 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cinstance, incoming students were permitted to opt out of rooming with black students. And some\nfraternities and sororities excluded black students from membership.\nIn 1966, the Defense Department conducted an investigation into the University\xe2\x80\x99s compliance with\nTitle VI of the Civil Rights Act, and made 25 recommendations for increasing opportunities for\nminority students. In 1970, a student group launched a number of protests, including a strike,\ndemanding that the University increase its minority enrollment. The University\xe2\x80\x99s Board of Regents\nresponded, adopting a goal of 10 percent black admissions by the fall of 1973.\nDuring the 1970\xe2\x80\x99s, the University continued to improve its admissions policies, encouraged by this\nCourt\xe2\x80\x99s 1978 decision in Bakke. In that case, the Court told our Nation\xe2\x80\x99s colleges and universities that\nthey could consider race in admissions as part of a broader goal to create a diverse student body, in\nwhich students of different backgrounds would learn together, and thereby learn to live together. A\nlittle more than a decade ago, in Grutter, the Court reaffirmed this understanding. In upholding the\nadmissions policy of the Law School, the Court laid to rest any doubt whether student body diversity\nis a compelling interest that may justify the use of race.\nRace-sensitive admissions policies are now a thing of the past in Michigan after \xc2\xa7 26, even though\xe2\x80\x94as\nexperts agree and as research shows\xe2\x80\x94those policies were making a difference in achieving\neducational diversity. In Grutter, Michigan\xe2\x80\x99s Law School spoke candidly about the strides the\ninstitution had taken successfully because of race-sensitive admissions. One expert retained by the\nLaw School opined that a race-blind admissions system would have a \xe2\x80\x9cvery dramatic, negative effect\non underrepresented minority admissions.\xe2\x80\x9d He testified that the school had admitted 35 percent of\nunderrepresented minority students who had applied in 2000, as opposed to only 10 percent who\nwould have been admitted had race not been considered. Underrepresented minority students would\nthus have constituted 4 percent, as opposed to the actual 14.5 percent, of the class that entered in\n2000.\nMichigan\xe2\x80\x99s public colleges and universities tell us the same today. The Board of Regents of the\nUniversity of Michigan and the Board of Trustees of Michigan State University inform us that those\ninstitutions cannot achieve the benefits of a diverse student body without race-sensitive admissions\nplans. During proceedings before the lower courts, several university officials testified that \xc2\xa7 26\nwould depress minority enrollment at Michigan\xe2\x80\x99s public universities. The Director of Undergraduate\nAdmissions at the University of Michigan \xe2\x80\x9cexpressed doubts over the ability to maintain minority\nenrollment through the use of a proxy, like socioeconomic status.\xe2\x80\x9d Similarly, the Law School\xe2\x80\x99s Dean\nof Admissions testified that she expected \xe2\x80\x9ca decline in minority admissions because, in her view, it is\nimpossible \xe2\x80\x98to get a critical mass of underrepresented minorities . . . without considering race.\xe2\x80\x99 \xe2\x80\x9d And\nthe Dean of Wayne State University Law School stated that \xe2\x80\x9calthough some creative approaches might\nmitigate the effects of [\xc2\xa7 26], he \xe2\x80\x98did not think that any one of these proposals or any combination of\nthese proposals was reasonably likely to result in the admission of a class that had the same or similar\nor higher numbers of African Americans, Latinos and Native Americans as the prior policy.\xe2\x80\x99\xe2\x80\x9d * * * *\n{statistical discussion omitted}\n\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 257\n\n\x0cB\nThese statistics may not influence the views of some of my colleagues, as they question the wisdom of\nadopting race-sensitive admissions policies and would prefer if our Nation\xe2\x80\x99s colleges and universities\nwere to discard those policies altogether. That view is at odds with our recognition in Grutter, and\nmore recently in Fisher v. University of Texas at Austin (2013), that race-sensitive admissions policies\nare necessary to achieve a diverse student body when race-neutral alternatives have failed. More\nfundamentally, it ignores the importance of diversity in institutions of higher education and reveals\nhow little my colleagues understand about the reality of race in America.\nThis Court has recognized that diversity in education is paramount. With good reason. Diversity\nensures that the next generation moves beyond the stereotypes, the assumptions, and the superficial\nperceptions that students coming from less-heterogeneous communities may harbor, consciously or\nnot, about people who do not look like them. Recognizing the need for diversity acknowledges that,\n\xe2\x80\x9c[ j]ust as growing up in a particular region or having particular professional experiences is likely to\naffect an individual\xe2\x80\x99s views, so too is one\xe2\x80\x99s own, unique experience of being a racial minority in a\nsociety, like our own, in which race unfortunately still matters.\xe2\x80\x9d Grutter. And it acknowledges that \xe2\x80\x9cto\ncultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to\nleadership be visibly open to talented and qualified individuals of every race and ethnicity.\xe2\x80\x9d\nColleges and universities must be free to prioritize the goal of diversity. They must be free to\nimmerse their students in a multiracial environment that fosters frequent and meaningful interactions\nwith students of other races, and thereby pushes such students to transcend any assumptions they\nmay hold on the basis of skin color. Without race-sensitive admissions policies, this might well be\nimpossible. The statistics I have described make that fact glaringly obvious. We should not turn a blind\neye to something we cannot help but see.\nTo be clear, I do not mean to suggest that the virtues of adopting race-sensitive admissions policies\nshould inform the legal question before the Court today regarding the constitutionality of \xc2\xa7 26. But I\ncannot ignore the unfortunate outcome of today\xe2\x80\x99s decision: Short of amending the State Constitution,\na Herculean task, racial minorities in Michigan are deprived of even an opportunity to convince\nMichigan\xe2\x80\x99s public colleges and universities to consider race in their admissions plans when other\nattempts to achieve racial diversity have proved unworkable, and those institutions are unnecessarily\nhobbled in their pursuit of a diverse student body.\nThe Constitution does not protect racial minorities from political defeat. But neither does it give the\nmajority free rein to erect selective barriers against racial minorities. The political-process doctrine\npolices the channels of change to ensure that the majority, when it wins, does so without rigging the\nrules of the game to ensure its success. Today, the Court discards that doctrine without good reason.\nIn doing so, it permits the decision of a majority of the voters in Michigan to strip Michigan\xe2\x80\x99s elected\nuniversity boards of their authority to make decisions with respect to constitutionally permissible\nrace-sensitive admissions policies, while preserving the boards\xe2\x80\x99 plenary authority to make all other\neducational decisions. \xe2\x80\x9cIn a most direct sense, this implicates the judiciary\xe2\x80\x99s special role in\nsafeguarding the interests of those groups that are relegated to such a position of political\n258 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cpowerlessness as to command extraordinary protection from the majoritarian political process.\xe2\x80\x9d\nSeattle. The Court abdicates that role, permitting the majority to use its numerical advantage to\nchange the rules mid-contest and forever stack the deck against racial minorities in Michigan.\nThe result is that Michigan\xe2\x80\x99s public colleges and universities are less equipped to do their part in\nensuring that students of all races are \xe2\x80\x9cbetter prepare[d] . . . for an increasingly diverse workforce and\nsociety . . .\xe2\x80\x9d Grutter.\nToday\xe2\x80\x99s decision eviscerates an important strand of our equal protection jurisprudence. For members\nof historically marginalized groups, which rely on the federal courts to protect their constitutional\nrights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right\nto participate meaningfully and equally in self-government.\nI respectfully dissent.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=35#h5p-73\n\nCooper v. Harris\n581 U.S. ___ (2017)\nKAGAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH THOMAS, GINSBURG, BREYER, AND SOTOMAYOR, JJ.,\nJOINED. THOMAS, J., FILED A CONCURRING OPINION. ALITO, J., FILED AN OPINION CONCURRING IN THE JUDGMENT IN\nPART AND DISSENTING IN PART, IN WHICH ROBERTS, C. J., AND KENNEDY, J., JOINED. GORSUCH, J., TOOK NO PART IN THE\nCONSIDERATION OR DECISION OF THE CASE.\nJUSTICE KAGAN DELIVERED THE OPINION OF THE COURT.\nThe Constitution entrusts States with the job of designing congressional districts. But it also imposes\nan important constraint: A State may not use race as the predominant factor in drawing district lines\nunless it has a compelling reason. In this case, a three-judge District Court ruled that North Carolina\nofficials violated that bar when they created two districts whose voting-age populations were majority\nblack. Applying a deferential standard of review to the factual findings underlying that decision, we\naffirm.\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 259\n\n\x0cI\nA\nThe Equal Protection Clause of the Fourteenth Amendment limits racial gerrymanders in legislative\ndistricting plans. It prevents a State, in the absence of \xe2\x80\x9csufficient justification,\xe2\x80\x9d from \xe2\x80\x9cseparating\nits citizens into different voting districts on the basis of race.\xe2\x80\x9d Bethune-Hill v. Virginia State Bd. of\nElections (2017). When a voter sues state officials for drawing such race-based lines, our decisions call\nfor a two-step analysis.\nFirst, the plaintiff must prove that \xe2\x80\x9crace was the predominant factor motivating the legislature\xe2\x80\x99s\ndecision to place a significant number of voters within or without a particular district.\xe2\x80\x9d Miller v.\nJohnson\n\n(1995).\n\nThat\n\nentails\n\ndemonstrating\n\nthat\n\nthe\n\nlegislature \xe2\x80\x9csubordinated\xe2\x80\x9d\n\nother\n\nfactors\xe2\x80\x94compactness, respect for political subdivisions, partisan advantage, what have you\xe2\x80\x94to \xe2\x80\x9cracial\nconsiderations.\xe2\x80\x9d The plaintiff may make the required showing through \xe2\x80\x9cdirect evidence\xe2\x80\x9d of legislative\nintent, \xe2\x80\x9ccircumstantial evidence of a district\xe2\x80\x99s shape and demographics,\xe2\x80\x9d or a mix of both.\nSecond, if racial considerations predominated over others, the design of the district must withstand\nstrict scrutiny. See Bethune-Hill. The burden thus shifts to the State to prove that its race-based\nsorting of voters serves a \xe2\x80\x9ccompelling interest\xe2\x80\x9d and is \xe2\x80\x9cnarrowly tailored\xe2\x80\x9d to that end. This Court has\nlong assumed that one compelling interest is complying with operative provisions of the Voting Rights\nAct of 1965 (VRA or Act).\nTwo provisions of the VRA\xe2\x80\x94\xc2\xa7 2 and \xc2\xa7 5\xe2\x80\x94are involved in this case. Section 2 prohibits any \xe2\x80\x9cstandard,\npractice, or procedure\xe2\x80\x9d that \xe2\x80\x9cresults in a denial or abridgement of the right . . . to vote on account of\nrace.\xe2\x80\x9d We have construed that ban to extend to \xe2\x80\x9cvote dilution\xe2\x80\x9d\xe2\x80\x94brought about, most relevantly here,\nby the \xe2\x80\x9cdispersal of [a group\xe2\x80\x99s members] into districts in which they constitute an ineffective minority\nof voters.\xe2\x80\x9d Thornburg v. Gingles (1986). Section 5, at the time of the districting in dispute, worked\nthrough a different mechanism. Before this Court invalidated its coverage formula, see Shelby County\nv. Holder (2013), that section required certain jurisdictions (including various North Carolina counties)\nto pre-clear voting changes with the Department of Justice, so as to forestall \xe2\x80\x9cretrogression\xe2\x80\x9d in the\nability of racial minorities to elect their preferred candidates.\nWhen a State invokes the VRA to justify race-based districting, it must show (to meet the \xe2\x80\x9cnarrow\ntailoring\xe2\x80\x9d requirement) that it had \xe2\x80\x9ca strong basis in evidence\xe2\x80\x9d for concluding that the statute required\nits action. Alabama Legislative Black Caucus v. Alabama (2015). Or said otherwise, the State must\nestablish that it had \xe2\x80\x9cgood reasons\xe2\x80\x9d to think that it would transgress the Act if it did not draw racebased district lines. That \xe2\x80\x9cstrong basis\xe2\x80\x9d (or \xe2\x80\x9cgood reasons\xe2\x80\x9d) standard gives States \xe2\x80\x9cbreathing room\xe2\x80\x9d to\nadopt reasonable compliance measures that may prove, in perfect hindsight, not to have been needed.\nBethune-Hill. * * * *\n\n260 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cB\nThis case concerns North Carolina\xe2\x80\x99s most recent redrawing of two congressional districts, both of\nwhich have long included substantial populations of black voters. In its current incarnation, District\n1 is anchored in the northeastern part of the State, with appendages stretching both south and west\n(the latter into Durham). District 12 begins in the south-central part of the State (where it takes in\na large part of Charlotte) and then travels northeast, zig-zagging much of the way to the State\xe2\x80\x99s\nnorthern border. (Maps showing the districts are included in an appendix to this opinion.) Both have\nquite the history before this Court.\nWe first encountered the two districts, in their 1992 versions, in Shaw v. Reno (1993). There, we held\nthat voters stated an equal protection claim by alleging that Districts 1 and 12 were unwarranted racial\ngerrymanders. After a remand to the District Court, the case arrived back at our door. See Shaw v.\nHunt (1996) (Shaw II). That time, we dismissed the challenge to District 1 for lack of standing, but\nstruck down District 12. The design of that \xe2\x80\x9cserpentine\xe2\x80\x9d district, we held, was nothing if not racecentric, and could not be justified as a reasonable attempt to comply with the VRA.\nThe next year, the State responded with a new districting plan, including a new District 12\xe2\x80\x94and\nresidents of that district brought another lawsuit alleging an impermissible racial gerrymander. A\nDistrict Court sustained the claim twice, but both times this Court reversed. See Hunt v. Cromartie\n(1999) (Cromartie I); Easley v. Cromartie (2001) (Cromartie II). Racial considerations, we held, did not\npredominate in designing the revised District 12. Rather, that district was the result of a political\ngerrymander\xe2\x80\x94an effort to engineer, mostly \xe2\x80\x9cwithout regard to race,\xe2\x80\x9d a safe Democratic seat.\nThe State redrew its congressional districts again in 2001, to account for population changes revealed\nin the prior year\xe2\x80\x99s census. Under the 2001 map, which went unchallenged in court, neither District 1\nnor District 12 had a black voting-age population (called a \xe2\x80\x9cBVAP\xe2\x80\x9d) that was a majority of the whole: The\nformer had a BVAP of around 48%, the latter a BVAP of around 43%. Nonetheless, in five successive\ngeneral elections conducted in those reconfigured districts, all the candidates preferred by most\nAfrican-American voters won their contests\xe2\x80\x94and by some handy margins. In District 1, black voters\xe2\x80\x99\ncandidates of choice garnered as much as 70% of the total vote, and never less than 59%. And in\nDistrict 12, those candidates won with 72% of the vote at the high end and 64% at the low.\nAnother census, in 2010, necessitated yet another congressional map\xe2\x80\x94(finally) the one at issue in this\ncase. State Senator Robert Rucho and State Representative David Lewis, both Republicans, chaired the\ntwo committees jointly responsible for preparing the revamped plan. They hired Dr. Thomas Hofeller,\na veteran political mapmaker, to assist them in redrawing district lines. Several hearings, drafts, and\nrevisions later, both chambers of the State\xe2\x80\x99s General Assembly adopted the scheme the three men\nproposed.\nThe new map (among other things) significantly altered both District 1 and District 12. The 2010 census\nhad revealed District 1 to be substantially underpopulated: To comply with the Constitution\xe2\x80\x99s oneperson-one-vote principle, the State needed to place almost 100,000 new people within the district\xe2\x80\x99s\nboundaries. Evenwel v. Abbott (2016) (explaining that \xe2\x80\x9c[s]tates must draw congressional districts with\npopulations as close to perfect equality as possible\xe2\x80\x9d). Rucho, Lewis, and Hofeller chose to take most\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 261\n\n\x0cof those people from heavily black areas of Durham, requiring a finger-like extension of the district\xe2\x80\x99s\nwestern line. With that addition, District 1\xe2\x80\x99s BVAP rose from 48.6% to 52.7%. District 12, for its part, had\nno need for significant total-population changes: It was overpopulated by fewer than 3,000 people out\nof over 730,000. Still, Rucho, Lewis, and Hofeller decided to reconfigure the district, further narrowing\nits already snakelike body while adding areas at either end\xe2\x80\x94most relevantly here, in Guilford County.\nThose changes appreciably shifted the racial composition of District 12: As the district gained some\n35,000 African-Americans of voting age and lost some 50,000 whites of that age, its BVAP increased\nfrom 43.8% to 50.7%.\nRegistered voters in the two districts (David Harris and Christine Bowser, here called \xe2\x80\x9cthe plaintiffs\xe2\x80\x9d)\nbrought this suit against North Carolina officials (collectively, \xe2\x80\x9cthe State\xe2\x80\x9d or \xe2\x80\x9cNorth Carolina\xe2\x80\x9d),\ncomplaining of impermissible racial gerrymanders. After a bench trial, a three-judge District Court\nheld both districts unconstitutional. All the judges agreed that racial considerations predominated in\nthe design of District 1. And in then applying strict scrutiny, all rejected the State\xe2\x80\x99s argument that it\nhad a \xe2\x80\x9cstrong basis\xe2\x80\x9d for thinking that the VRA compelled such a race-based drawing of District 1\xe2\x80\x99s\nlines. As for District 12, a majority of the panel held that \xe2\x80\x9crace predominated\xe2\x80\x9d over all other factors,\nincluding partisanship. And the court explained that the State had failed to put forward any reason,\ncompelling or otherwise, for its attention to race in designing that district. Judge Osteen dissented\nfrom the conclusion that race, rather than politics, drove District 12\xe2\x80\x99s lines\xe2\x80\x94yet still characterized the\nmajority\xe2\x80\x99s view as \xe2\x80\x9c[e]minently reasonable.\xe2\x80\x9d\nThe State filed a notice of appeal, and we noted probable jurisdiction.\n\nII\nWe address at the outset North Carolina\xe2\x80\x99s contention that a victory it won in a very similar state-court\nlawsuit should dictate (or at least influence) our disposition of this case. * * * * {The Court rejected\nthe state\xe2\x80\x99s contentions.}\n\nIII\nWith that out of the way, we turn to the merits of this case, beginning (appropriately enough) with\nDistrict 1. As noted above, the court below found that race furnished the predominant rationale for\nthat district\xe2\x80\x99s redesign. And it held that the State\xe2\x80\x99s interest in complying with the VRA could not justify\nthat consideration of race. We uphold both conclusions.\n\nA\nUncontested evidence in the record shows that the State\xe2\x80\x99s mapmakers, in considering District 1,\npurposefully established a racial target: African-Americans should make up no less than a majority\nof the voting-age population. Senator Rucho and Representative Lewis were not coy in expressing\n262 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cthat goal. They repeatedly told their colleagues that District 1 had to be majority-minority, so as to\ncomply with the VRA. During a Senate debate, for example, Rucho explained that District 1 \xe2\x80\x9cmust\ninclude a sufficient number of African-Americans\xe2\x80\x9d to make it \xe2\x80\x9ca majority black district.\xe2\x80\x9d Similarly,\nLewis informed the House and Senate redistricting committees that the district must have \xe2\x80\x9ca majority\nblack voting age population.\xe2\x80\x9d And that objective was communicated in no uncertain terms to the\nlegislators\xe2\x80\x99 consultant. Dr. Hofeller testified multiple times at trial that Rucho and Lewis instructed\nhim \xe2\x80\x9cto draw [District 1] with a [BVAP] in excess of 50 percent.\xe2\x80\x9d\nHofeller followed those directions to the letter, such that the 50%-plus racial target \xe2\x80\x9chad a direct and\nsignificant impact\xe2\x80\x9d on District 1\xe2\x80\x99s configuration. In particular, Hofeller moved the district\xe2\x80\x99s borders\nto encompass the heavily black parts of Durham (and only those parts), thus taking in tens of\nthousands of additional African-American voters. That change and similar ones, made (in his words) to\nensure that the district\xe2\x80\x99s racial composition would \xe2\x80\x9cadd[ ] up correctly,\xe2\x80\x9d deviated from the districting\npractices he other-wise would have followed. Hofeller candidly admitted that point: For example, he\ntestified, he sometimes could not respect county or precinct lines as he wished because \xe2\x80\x9cthe more\nimportant thing\xe2\x80\x9d was to create a majority-minority district. The result is a district with stark racial\nborders: Within the same counties, the portions that fall inside District 1 have black populations two\nto three times larger than the portions placed in neighboring districts.\nFaced with this body of evidence\xe2\x80\x94showing an announced racial target that subordinated other\ndistricting criteria and produced boundaries amplifying divisions between blacks and whites\xe2\x80\x94the\nDistrict Court did not clearly err in finding that race predominated in drawing District 1. Indeed, as all\nthree judges recognized, the court could hardly have concluded anything but.\n\nB\nThe more substantial question is whether District 1 can survive the strict scrutiny applied to racial\ngerrymanders. As noted earlier, we have long assumed that complying with the VRA is a compelling\ninterest. And we have held that race-based districting is narrowly tailored to that objective if a State\nhad \xe2\x80\x9cgood reasons\xe2\x80\x9d for thinking that the Act demanded such steps. North Carolina argues that District\n1 passes muster under that standard: The General Assembly (so says the State) had \xe2\x80\x9cgood reasons to\nbelieve it needed to draw [District 1] as a majority-minority district to avoid Section 2 liability\xe2\x80\x9d for vote\ndilution.\nThis Court identified, in Thornburg v. Gingles, three threshold conditions for proving vote dilution\nunder \xc2\xa7 2 of the VRA. First, a \xe2\x80\x9cminority group\xe2\x80\x9d must be \xe2\x80\x9csufficiently large and geographically compact\nto constitute a majority\xe2\x80\x9d in some reasonably configured legislative district. Second, the minority group\nmust be \xe2\x80\x9cpolitically cohesive.\xe2\x80\x9d And third, a district\xe2\x80\x99s white majority must \xe2\x80\x9cvote [ ] sufficiently as a bloc\xe2\x80\x9d\nto usually \xe2\x80\x9cdefeat the minority\xe2\x80\x99s preferred candidate.\xe2\x80\x9d Those three showings, we have explained, are\nneeded to establish that \xe2\x80\x9cthe minority [group] has the potential to elect a representative of its own\nchoice\xe2\x80\x9d in a possible district, but that racially polarized voting prevents it from doing so in the district\nas actually drawn because it is \xe2\x80\x9csubmerg[ed] in a larger white voting population.\xe2\x80\x9d If a State has good\n\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 263\n\n\x0creason to think that all the \xe2\x80\x9cGingles preconditions\xe2\x80\x9d are met, then so too it has good reason to believe\nthat \xc2\xa7 2 requires drawing a majority-minority district. But if not, then not.\nHere, electoral history provided no evidence that a \xc2\xa7 2 plaintiff could demonstrate the third Gingles\nprerequisite\xe2\x80\x94effective white bloc-voting. For most of the twenty years prior to the new plan\xe2\x80\x99s\nadoption, African-Americans had made up less than a majority of District 1\xe2\x80\x99s voters; the district\xe2\x80\x99s BVAP\nusually hovered between 46% and 48%. Yet throughout those two decades, as the District Court\nnoted, District 1 was \xe2\x80\x9can extraordinarily safe district for African-American preferred candidates.\xe2\x80\x9d In\nthe closest election during that period, African-Americans\xe2\x80\x99 candidate of choice received 59% of the\ntotal vote; in other years, the share of the vote garnered by those candidates rose to as much as 70%.\nThose victories (indeed, landslides) occurred because the district\xe2\x80\x99s white population did not \xe2\x80\x9cvote[ ]\nsufficiently as a bloc\xe2\x80\x9d to thwart black voters\xe2\x80\x99 preference; rather, a meaningful number of white voters\njoined a politically cohesive black community to elect that group\xe2\x80\x99s favored candidate. In the lingo of\nvoting law, District 1 functioned, election year in and election year out, as a \xe2\x80\x9ccross-over\xe2\x80\x9d district, in\nwhich members of the majority help a \xe2\x80\x9clarge enough\xe2\x80\x9d minority to elect its candidate of choice. Bartlett\nv. Strickland (2009) (plurality opinion). When voters act in that way, \xe2\x80\x9c[i]t is difficult to see how the\nmajority-bloc-voting requirement could be met\xe2\x80\x9d\xe2\x80\x94and hence how \xc2\xa7 2 liability could be established. So\nexperience gave the State no reason to think that the VRA required it to ramp up District 1\xe2\x80\x99s BVAP.\nThe State counters that, in this context, past performance is no guarantee of future results. Recall\nhere that the State had to redraw its whole congressional map following the 2010 census. And in\nparticular, the State had to add nearly 100,000 new people to District 1 to meet the one-person-onevote standard. That meant about 13% of the voters in the new district would never have voted there\nbefore. So, North Carolina contends, the question facing the state mapmakers was not whether the\nthen-existing District 1 violated \xc2\xa7 2. Rather, the question was whether the future District 1 would do\nso if drawn without regard to race. And that issue, the State claims, could not be resolved by \xe2\x80\x9cfocusing\nmyopically on past elections.\xe2\x80\x9d\nBut that reasoning, taken alone, cannot justify North Carolina\xe2\x80\x99s race-based redesign of District 1.\nTrue enough, a legislature undertaking a redistricting must assess whether the new districts it\ncontemplates (not the old ones it sheds) conform to the VRA\xe2\x80\x99s requirements. And true too, an\ninescapable influx of additional voters into a district may suggest the possibility that its former track\nrecord of compliance can continue only if the legislature intentionally adjusts its racial composition.\nStill, North Carolina too far downplays the significance of a longtime pattern of white crossover voting\nin the area that would form the core of the redrawn District 1. See Gingles (noting that longtime voting\npatterns are highly probative of racial polarization). And even more important, North Carolina can\npoint to no meaningful legislative inquiry into what it now rightly identifies as the key issue: whether\na new, enlarged District 1, created without a focus on race but however else the State would choose,\ncould lead to \xc2\xa7 2 liability. The prospect of a significant population increase in a district only raises\xe2\x80\x94it\ndoes not answer\xe2\x80\x94the question whether \xc2\xa7 2 requires deliberate measures to augment the district\xe2\x80\x99s\nBVAP. (Indeed, such population growth could cut in either direction, depending on who comes into the\ndistrict.) To have a strong basis in evidence to conclude that \xc2\xa7 2 demands such race-based steps, the\nState must carefully evaluate whether a plaintiff could establish the Gingles preconditions\xe2\x80\x94including\n\n264 | Liberty, Equality, and Due Process: Third Edition\n\n\x0ceffective white bloc-voting\xe2\x80\x94in a new district created without those measures. We see nothing in the\nlegislative record that fits that description.\nAnd that absence is no accident: Rucho and Lewis proceeded under a wholly different theory\xe2\x80\x94arising\nnot from Gingles but from Bartlett v. Strickland\xe2\x80\x94of what \xc2\xa7 2 demanded in drawing District 1. Strickland\ninvolved a geographic area in which African-Americans could not form a majority of a reasonably\ncompact district. The African-American community, however, was sizable enough to enable the\nformation of a crossover district, in which a substantial bloc of black voters, if receiving help from\nsome white ones, could elect the candidates of their choice. A plurality of this Court, invoking the first\nGingles precondition, held that \xc2\xa7 2 did not require creating that district: When a minority group is not\nsufficiently large to make up a majority in a reasonably shaped district, \xc2\xa7 2 simply does not apply. Over\nand over in the legislative record, Rucho and Lewis cited Strickland as mandating a 50%-plus BVAP in\nDistrict 1. They apparently reasoned that if, as Strickland held, \xc2\xa7 2 does not require crossover districts\n(for groups insufficiently large under Gingles), then \xc2\xa7 2 also cannot be satisfied by crossover districts\n(for groups in fact meeting Gingles\xe2\x80\x99 size condition). In effect, they concluded, whenever a legislature\ncan draw a majority-minority district, it must do so\xe2\x80\x94even if a crossover district would also allow the\nminority group to elect its favored candidates.\nThat idea, though, is at war with our \xc2\xa7 2 jurisprudence\xe2\x80\x94Strickland included. Under the State\xe2\x80\x99s view,\nthe third Gingles condition is no condition at all, because even in the absence of effective white blocvoting, a \xc2\xa7 2 claim could succeed in a district (like the old District 1) with an under-50% BVAP. But\nthis Court has made clear that unless each of the three Gingles prerequisites is established, \xe2\x80\x9cthere\nneither has been a wrong nor can be a remedy.\xe2\x80\x9d And Strickland, far from supporting North Carolina\xe2\x80\x99s\nview, underscored the necessity of demonstrating effective white bloc-voting to prevail in a \xc2\xa7 2 votedilution suit. The plurality explained that \xe2\x80\x9c[i]n areas with substantial crossover voting,\xe2\x80\x9d \xc2\xa7 2 plaintiffs\nwould not \xe2\x80\x9cbe able to establish the third Gingles precondition\xe2\x80\x9d and so \xe2\x80\x9cmajority-minority districts\nwould not be required.\xe2\x80\x9d Thus, North Carolina\xe2\x80\x99s belief that it was compelled to redraw District 1 (a\nsuccessful crossover district) as a majority-minority district rested not on a \xe2\x80\x9cstrong basis in evidence,\xe2\x80\x9d\nbut instead on a pure error of law.\nIn sum: Although States enjoy leeway to take race-based actions reasonably judged necessary under\na proper interpretation of the VRA, that latitude cannot rescue District 1. We by no means \xe2\x80\x9cinsist that\na state legislature, when redistricting, determine precisely what percent minority population [\xc2\xa7 2 of\nthe VRA] demands.\xe2\x80\x9d But neither will we approve a racial gerrymander whose necessity is supported\nby no evidence and whose raison d\xe2\x80\x99\xc3\xaatre is a legal mistake. Accordingly, we uphold the District Court\xe2\x80\x99s\nconclusion that North Carolina\xe2\x80\x99s use of race as the predominant factor in designing District 1 does not\nwithstand strict scrutiny.\n\nIV\nWe now look west to District 12, making its fifth(!) appearance before this Court. This time, the\ndistrict\xe2\x80\x99s legality turns, and turns solely, on which of two possible reasons predominantly explains its\nmost recent reconfiguration. The plaintiffs contended at trial that the General Assembly chose voters\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 265\n\n\x0cfor District 12, as for District 1, because of their race; more particularly, they urged that the Assembly\nintentionally increased District 12\xe2\x80\x99s BVAP in the name of ensuring preclearance under the VRA\xe2\x80\x99s \xc2\xa7 5.\nBut North Carolina declined to mount any defense (similar to the one we have just considered for\nDistrict 1) that \xc2\xa7 5\xe2\x80\x99s requirements in fact justified race-based changes to District 12\xe2\x80\x94perhaps because\n\xc2\xa7 5 could not reasonably be understood to have done so. Instead, the State altogether denied that\nracial considerations accounted for (or, indeed, played the slightest role in) District 12\xe2\x80\x99s redesign.\nAccording to the State\xe2\x80\x99s version of events, Senator Rucho, Representative Lewis, and Dr. Hofeller\nmoved voters in and out of the district as part of a \xe2\x80\x9cstrictly\xe2\x80\x9d political gerrymander, without regard\nto race. The mapmakers drew their lines, in other words, to \xe2\x80\x9cpack\xe2\x80\x9d District 12 with Democrats,\nnot African-Americans. After hearing evidence supporting both parties\xe2\x80\x99 accounts, the District Court\naccepted the plaintiffs\xe2\x80\x99.\nGetting to the bottom of a dispute like this one poses special challenges for a trial court. In the more\nusual case alleging a racial gerrymander\xe2\x80\x94where no one has raised a partisanship defense\xe2\x80\x94the court\ncan make real headway by exploring the challenged district\xe2\x80\x99s conformity to traditional districting\nprinciples, such as compactness and respect for county lines. In Shaw II, for example, this Court\nemphasized the \xe2\x80\x9chighly irregular\xe2\x80\x9d shape of then-District 12 in concluding that race predominated in\nits design. But such evidence loses much of its value when the State asserts partisanship as a defense,\nbecause a bizarre shape\xe2\x80\x94as of the new District 12\xe2\x80\x94can arise from a \xe2\x80\x9cpolitical motivation\xe2\x80\x9d as well\nas a racial one. Cromartie I. And crucially, political and racial reasons are capable of yielding similar\noddities in a district\xe2\x80\x99s boundaries. That is because, of course, \xe2\x80\x9cracial identification is highly correlated\nwith political affiliation.\xe2\x80\x9d Cromartie II. As a result of those redistricting realities, a trial court has a\nformidable task: It must make \xe2\x80\x9ca sensitive inquiry\xe2\x80\x9d into all \xe2\x80\x9ccircumstantial and direct evidence of\nintent\xe2\x80\x9d to assess whether the plaintiffs have managed to disentangle race from politics and prove that\nthe former drove a district\xe2\x80\x99s lines. Cromartie I.\nOur job is different\xe2\x80\x94and generally easier. As described earlier, we review a district court\xe2\x80\x99s finding as\nto racial predominance only for clear error, except when the court made a legal mistake. * * * *\nIn light of those principles, we uphold the District Court\xe2\x80\x99s finding of racial predominance respecting\nDistrict 12. The evidence offered at trial, including live witness testimony subject to credibility\ndeterminations, adequately supports the conclusion that race, not politics, accounted for the district\xe2\x80\x99s\nreconfiguration. And no error of law infected that judgment: Contrary to North Carolina\xe2\x80\x99s view, the\nDistrict Court had no call to dismiss this challenge just because the plaintiffs did not proffer an\nalternative design for District 12 as circumstantial evidence of the legislature\xe2\x80\x99s intent.\n\nA\nBegin with some facts and figures, showing how the redistricting of District 12 affected its racial\ncomposition. As explained above, District 12 (unlike District 1) was approximately the right size as\nit was: North Carolina did not\xe2\x80\x94indeed, could not\xe2\x80\x94much change its total population. But by further\nslimming the district and adding a couple of knobs to its snakelike body (including in Guilford County),\nthe General Assembly incorporated tens of thousands of new voters and pushed out tens of thousands\n266 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cof old ones. And those changes followed racial lines: To be specific, the new District 12 had 35,000\nmore African-Americans of voting age and 50,000 fewer whites of that age. (The difference was made\nup of voters from other racial categories.) Those voter exchanges produced a sizable jump in the\ndistrict\xe2\x80\x99s BVAP, from 43.8% to 50.7%. The Assembly thus turned District 12 (as it did District 1) into a\nmajority-minority district.\nAs the plaintiffs pointed out at trial, Rucho and Lewis had publicly stated that racial considerations lay\nbehind District 12\xe2\x80\x99s augmented BVAP. In a release issued along with their draft districting plan, the two\nlegislators ascribed that change to the need to achieve preclearance of the plan under \xc2\xa7 5 of the VRA.\n* * * * Hofeller confirmed that intent in both deposition testimony and an expert report. * * * *\nThe State\xe2\x80\x99s preclearance submission to the Justice Department indicated a similar determination\nto concentrate black voters in District 12. \xe2\x80\x9cOne of the concerns of the Redistricting Chairs,\xe2\x80\x9d North\nCarolina there noted, had to do with the Justice Department\xe2\x80\x99s years-old objection to \xe2\x80\x9ca failure by the\nState to create a second majority minority district\xe2\x80\x9d (that is, in addition to District 1). The submission\nthen went on to explain that after considering alternatives, the redistricters had designed a version\nof District 12 that would raise its BVAP to 50.7%. Thus, concluded the State, the new District 12\n\xe2\x80\x9cincreases [ ] the African-American community\xe2\x80\x99s ability to elect their candidate of choice.\xe2\x80\x9d In the\nDistrict Court\xe2\x80\x99s view, that passage once again indicated that making District 12 majority-minority was\nno \xe2\x80\x9cmere coincidence,\xe2\x80\x9d but a deliberate attempt to avoid perceived obstacles to preclearance.\nAnd still there was more: Perhaps the most dramatic testimony in the trial came when Congressman\nMel Watt (who had represented District 12 for some 20 years) recounted a conversation he had with\nRucho in 2011 about the district\xe2\x80\x99s future make-up. According to Watt, Rucho said that \xe2\x80\x9chis leadership\nhad told him that he had to ramp the minority percentage in [District 12] up to over 50 percent\nto comply with the Voting Rights Law.\xe2\x80\x9d And further, that it would then be Rucho\xe2\x80\x99s \xe2\x80\x9cjob to go and\nconvince the African-American community\xe2\x80\x9d that such a racial target \xe2\x80\x9cmade sense\xe2\x80\x9d under the Act.\nThe District Court credited Watt\xe2\x80\x99s testimony about the conversation, citing his courtroom demeanor\nand \xe2\x80\x9cconsistent recollection\xe2\x80\x9d under \xe2\x80\x9cprobing cross-examination.\xe2\x80\x9d In the court\xe2\x80\x99s view, Watt\xe2\x80\x99s account\nwas of a piece with all the other evidence\xe2\x80\x94including the redistricters\xe2\x80\x99 on-the-nose attainment of a\n50% BVAP\xe2\x80\x94indicating that the General Assembly, in the name of VRA compliance, deliberately redrew\nDistrict 12 as a majority-minority district.\nThe State\xe2\x80\x99s contrary story\xe2\x80\x94that politics alone drove decisionmaking\xe2\x80\x94came into the trial mostly\nthrough Hofeller\xe2\x80\x99s testimony. Hofeller explained that Rucho and Lewis instructed him, first and\nforemost, to make the map as a whole \xe2\x80\x9cmore favorable to Republican candidates.\xe2\x80\x9d One agreedon stratagem in that effort was to pack the historically Democratic District 12 with even more\nDemocratic voters, thus leaving surrounding districts more reliably Republican. To that end, Hofeller\nrecounted, he drew District 12\xe2\x80\x99s new boundaries based on political data\xe2\x80\x94specifically, the voting\nbehavior of precincts in the 2008 Presidential election between Barack Obama and John McCain.\nIndeed, he claimed, he displayed only this data, and no racial data, on his computer screen while\nmapping the district. In part of his testimony, Hofeller further stated that the Obama-McCain election\ndata explained (among other things) his incorporation of the black, but not the white, parts of\nGuilford County then located in District 13. Only after he drew a politics-based line between those\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 267\n\n\x0cadjacent areas, Hofeller testified, did he \xe2\x80\x9ccheck [ ]\xe2\x80\x9d the racial data and \xe2\x80\x9cf[ind] out\xe2\x80\x9d that the resulting\nconfiguration of District 12 \xe2\x80\x9cdid not have a [\xc2\xa7 5] issue.\xe2\x80\x9d\nThe District Court, however, disbelieved Hofeller\xe2\x80\x99s asserted indifference to the new district\xe2\x80\x99s racial\ncomposition. The court recalled Hofeller\xe2\x80\x99s contrary deposition testimony\xe2\x80\x94his statement (repeated in\nonly slightly different words in his expert report) that Rucho and Lewis \xe2\x80\x9cdecided\xe2\x80\x9d to shift AfricanAmerican voters into District 12 \xe2\x80\x9cin order to\xe2\x80\x9d ensure preclearance under \xc2\xa7 5. And the court explained\nthat even at trial, Hofeller had given testimony that undermined his \xe2\x80\x9cblame it on politics\xe2\x80\x9d claim.\nRight after asserting that Rucho and Lewis had told him \xe2\x80\x9c[not] to use race\xe2\x80\x9d in designing District 12,\nHofeller added a qualification: \xe2\x80\x9cexcept perhaps with regard to Guilford County.\xe2\x80\x9d As the District Court\nunderstood, that is the kind of \xe2\x80\x9cexception\xe2\x80\x9d that goes pretty far toward swallowing the rule. District\n12 saw a net increase of more than 25,000 black voters in Guilford County, relative to a net gain of\nfewer than 35,000 across the district: So the newly added parts of that county played a major role in\npushing the district\xe2\x80\x99s BVAP over 50%. The District Court came away from Hofeller\xe2\x80\x99s self-contradictory\ntestimony unpersuaded that this decisive influx of black voters was an accident. Whether the racial\nmake-up of the county was displayed on his computer screen or just fixed in his head, the court\nthought, Hofeller\xe2\x80\x99s denial of race-based districting \xe2\x80\x9cr[ang] hollow.\xe2\x80\x9d\nFinally, an expert report by Dr. Stephen Ansolabehere lent circumstantial support to the plaintiffs\xe2\x80\x99\nrace-not-politics case. Ansolabehere looked at the six counties overlapping with District\n12\xe2\x80\x94essentially the region from which the mapmakers could have drawn the district\xe2\x80\x99s population. The\nquestion he asked was: Who from those counties actually ended up in District 12? The answer he\nfound was: Only 16% of the region\xe2\x80\x99s white registered voters, but 64% of the black ones. Ansolabehere\nnext controlled for party registration, but discovered that doing so made essentially no difference:\nFor example, only 18% of the region\xe2\x80\x99s white Democrats wound up in District 12, whereas 65% of the\nblack Democrats did. The upshot was that, regardless of party, a black voter was three to four times\nmore likely than a white voter to cast his ballot within District 12\xe2\x80\x99s borders. Those stark disparities led\nAnsolabehere to conclude that \xe2\x80\x9crace, and not party,\xe2\x80\x9d was \xe2\x80\x9cthe dominant factor\xe2\x80\x9d in District 12\xe2\x80\x99s design.\nHis report, as the District Court held, thus tended to confirm the plaintiffs\xe2\x80\x99 direct evidence of racial\npredominance.\nThe District Court\xe2\x80\x99s assessment that all this evidence proved racial predominance clears the bar of\nclear error review. * * * * No doubt other interpretations of that evidence were permissible. Maybe we\nwould have evaluated the testimony differently had we presided over the trial; or then again, maybe\nwe would not have. Either way\xe2\x80\x94and it is only this which matters\xe2\x80\x94we are far from having a \xe2\x80\x9cdefinite\nand firm conviction\xe2\x80\x9d that the District Court made a mistake in concluding from the record before it\nthat racial considerations predominated in District 12\xe2\x80\x99s design.\n\nB\nThe State mounts a final, legal rather than factual, attack on the District Court\xe2\x80\x99s finding of racial\npredominance. When race and politics are competing explanations of a district\xe2\x80\x99s lines, argues North\nCarolina, the party challenging the district must introduce a particular kind of circumstantial\n268 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cevidence: \xe2\x80\x9can alternative [map] that achieves the legislature\xe2\x80\x99s political objectives while improving\nracial balance.\xe2\x80\x9d That is true, the State says, irrespective of what other evidence is in the case\xe2\x80\x94so\neven if the plaintiff offers powerful direct proof that the legislature adopted the map it did for racial\nreasons. Because the plaintiffs here (as all agree) did not present such a counter-map, North Carolina\nconcludes that they cannot prevail. The dissent echoes that argument.\nWe have no doubt that an alternative districting plan, of the kind North Carolina describes, can serve\nas key evidence in a race-versus-politics dispute. One, often highly persuasive way to disprove a\nState\xe2\x80\x99s contention that politics drove a district\xe2\x80\x99s lines is to show that the legislature had the capacity\nto accomplish all its partisan goals without moving so many members of a minority group into the\ndistrict. If you were really sorting by political behavior instead of skin color (so the argument goes)\nyou would have done\xe2\x80\x94or, at least, could just as well have done\xe2\x80\x94this. Such would-have, could-have,\nand (to round out the set) should-have arguments are a familiar means of undermining a claim that\nan action was based on a permissible, rather than a prohibited, ground. See, e.g., Miller-El v. Dretke\n(2005) (\xe2\x80\x9cIf that were the [real] explanation for striking [ juror] Warren[,] the prosecutors should have\nstruck [ juror] Jenkins\xe2\x80\x9d too).\nBut they are hardly the only means. Suppose that the plaintiff in a dispute like this one introduced\nscores of leaked emails from state officials instructing their mapmaker to pack as many black voters\nas possible into a district, or telling him to make sure its BVAP hit 75%. Based on such evidence,\na court could find that racial rather than political factors predominated in a district\xe2\x80\x99s design, with\nor without an alternative map. And so too in cases lacking that kind of smoking gun, as long as the\nevidence offered satisfies the plaintiff\xe2\x80\x99s burden of proof. In Bush v. Vera (1996), for example, this Court\nupheld a finding of racial predominance based on \xe2\x80\x9csubstantial direct evidence of the legislature\xe2\x80\x99s\nracial motivations\xe2\x80\x9d\xe2\x80\x94including credible testimony from political figures and statements made in a \xc2\xa7 5\npreclearance submission\xe2\x80\x94plus circumstantial evidence that redistricters had access to racial, but\nnot political, data at the \xe2\x80\x9cblock-by-block level\xe2\x80\x9d needed to explain their \xe2\x80\x9cintricate\xe2\x80\x9d designs (plurality\nopinion). Not a single Member of the Court thought that the absence of a counter-map made any\ndifference. Similarly, it does not matter in this case, where the plaintiffs\xe2\x80\x99 introduction of mostly\ndirect and some circumstantial evidence\xe2\x80\x94documents issued in the redistricting process, testimony\nof government officials, expert analysis of demographic patterns\xe2\x80\x94gave the District Court a sufficient\nbasis, sans any map, to resolve the race-or-politics question.\nA plaintiff\xe2\x80\x99s task, in other words, is simply to persuade the trial court\xe2\x80\x94without any special evidentiary\nprerequisite\xe2\x80\x94that race (not politics) was the \xe2\x80\x9cpredominant consideration in deciding to place a\nsignificant number of voters within or without a particular district.\xe2\x80\x9d That burden of proof, we have\noften held, is \xe2\x80\x9cdemanding.\xe2\x80\x9d And because that is so, a plaintiff will sometimes need an alternative map,\nas a practical matter, to make his case. But in no area of our equal protection law have we forced\nplaintiffs to submit one particular form of proof to prevail. See Arlington Heights v. Metropolitan\nHousing Development Corp (1977) (offering a varied and non-exhaustive list of \xe2\x80\x9csubjects of proper\ninquiry in determining whether racially discriminatory intent existed\xe2\x80\x9d). Nor would it make sense to\ndo so here. The Equal Protection Clause prohibits the unjustified drawing of district lines based on\nrace. An alternative map is merely an evidentiary tool to show that such a substantive violation has\noccurred; neither its presence nor its absence can itself resolve a racial gerrymandering claim. * * * *\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 269\n\n\x0cV\nApplying a clear error standard, we uphold the District Court\xe2\x80\x99s conclusions that racial considerations\npredominated in designing both District 1 and District 12. For District 12, that is all we must do,\nbecause North Carolina has made no attempt to justify race-based districting there. For District 1, we\nfurther uphold the District Court\xe2\x80\x99s decision that \xc2\xa7 2 of the VRA gave North Carolina no good reason to\nreshuffle voters because of their race. We accordingly affirm the judgment of the District Court.\nIt is so ordered.\nJUSTICE ALITO, WITH WHOM THE CHIEF JUSTICE AND JUSTICE KENNEDY JOIN, CONCURRING IN THE JUDGMENT IN PART\nAND DISSENTING IN PART. {OMITTED; THE OPINION DISSENTED AS TO DISTRICT 12}.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=35#h5p-74\n\nNotes\n1. The disagreement in Cooper v. Harris centered on District 12 and the legislative intent for the\nredistricting of District 12, and prompted a trading of literary allusions. In Alito\xe2\x80\x99s dissent, he writes:\nAmazingly, a reader of the majority opinion (and the opinion of the District Court) would\nremain almost entirely ignorant of the legislature\xe2\x80\x99s political strategy and the relationship\nbetween that strategy and the racial composition of District 12. The majority\xe2\x80\x99s analysis is like\nHamlet without the prince.\nThe Court\xe2\x80\x99s opinion by Justice Kagan, counters this in its footnote 6:\nJustice Alito charges us with \xe2\x80\x9cignor[ing]\xe2\x80\x9d the State\xe2\x80\x99s political-gerrymander defense, making\nour analysis \xe2\x80\x9clike Hamlet without the prince.\xe2\x80\x9d But we simply take the State\xe2\x80\x99s account for what\nit is: one side of a thoroughly two-sided case (and, as we will discuss, the side the District\nCourt rejected, primarily on factual grounds). By contrast, the dissent consistently treats the\nState\xe2\x80\x99s version of events (what it calls \xe2\x80\x9cthe Legislature\xe2\x80\x99s political strategy and the relationship\n270 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cbetween that strategy and [District 12\xe2\x80\x99s] racial composition,\xe2\x80\x9d) as if it were a simple \xe2\x80\x9cfact of the\nmatter\xe2\x80\x9d\xe2\x80\x94the premise of, rather than a contested claim in, this case. The dissent\xe2\x80\x99s narrative\nthus tracks, top-to-bottom and point-for-point, the testimony of Dr. Hofeller, the State\xe2\x80\x99s star\nwitness at trial\xe2\x80\x94so much so that the dissent could just have block-quoted that portion of the\ntranscript and saved itself a fair bit of trouble. Compare post, at 12\xe2\x80\x9320, with App. 2671\xe2\x80\x932755.\nImagine (to update the dissent\xe2\x80\x99s theatrical reference) Inherit the Wind retold solely from the\nperspective of William Jennings Bryan, with nary a thought given to the competing viewpoint\nof Clarence Darrow.\n2. As to the possibility of an Equal Protection Clause challenge to political or partisan gerrymandering,\nafter sidestepping the question in several cases (including Gill v. Whitford (2018)), the United States\nSupreme Court\xe2\x80\x99s decision in Rucho v. Common Cause (2019) held that the judicial branch has no role\nin deciding issues of partisan gerrymandering. Writing for the 5 Justice majority, Chief Justice Roberts\nconcluded that challenges to partisan gerrymandering involve a political question unsuitable for the\ncourts because such issues lack \xe2\x80\x9cjudicially discoverable and manageable standards for resolving them.\xe2\x80\x9d\nChief Justice Roberts recommended that state courts resolve the issue.\nIn dissent, Justice Kagan\xe2\x80\x94joined by Justices Ginsburg, Breyer, and Sotomayor\xe2\x80\x94began by stating \xe2\x80\x9cFor\nthe first time ever, this Court refuses to remedy a constitutional violation because it thinks it is beyond\nits judicial capabilities.\xe2\x80\x9d Kagan\xe2\x80\x99s impassioned dissent, as long as the majority opinion, and parts of\nwhich she read from the bench (a rare practice for her), explained that democracy is at stake and if\n\xe2\x80\x9cleft unchecked, gerrymanders like the ones here may irreparably damage our system of government.\xe2\x80\x9d\nAs for standards, the four dissenters argued that courts have developed a framework for analyzing\nclaims of partisan gerrymandering, including the workable standard the three-judge court in Rucho\nused to analyze North Carolina\xe2\x80\x99s redistricting and hold its partisan gerrymandering was so severe\nit violated the Equal Protection Clause. And regarding state courts, Kagan\xe2\x80\x99s opinion asked, \xe2\x80\x9cwhat do\nthose courts know that this Court cannot? If they can develop and apply neutral and manageable\nstandards to identify unconstitutional gerrymanders, why couldn\xe2\x80\x99t we?\xe2\x80\x9d\nVoting and Equal Protection will be considered again in a later chapter.\n\nFurther Your Understanding\nCALI Lesson: Affirmative Action and Equal Protection\nCALI, The Center for Assisted Legal Instruction, has a lesson designed to assist and further your\nunderstanding of equal protection and affirmative action. The lesson treats the beginnings of\naffirmative action, the level of scrutiny that applies to affirmative action, the special context of\naffirmative action and education, and affirmative action and the political process, including\nredistricting.\n\nCHAPTER FOUR: Race and Equal Protection - Part 2 | 271\n\n\x0cCHAPTER FIVE: Nonracial Classifications\nand Equal Protection - Part 1\nI. Rational Basis Standard as Default\nRailway Express Agency, Inc. v. New York\n336 U.S. 106 (1949)\nJUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT, IN WHICH VINSON, BLACK, FRANKFURTER, MURPHY,\nJACKSON, AND BURTON, JJ, JOINED. RUTLEDGE, J., ISSUED A BRIEF CONCURRING OPINION. JACKSON, J., ISSUED A\nCONCURRING OPINION.\nMR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT.\nSection 124 of the Traffic Regulations of the City of New York promulgated by the Police Commissioner\nprovides:\n\xe2\x80\x98No person shall operate, or cause to be operated, in or upon any street an advertising vehicle;\nprovided that nothing herein contained shall prevent the putting of business notices upon\nbusiness delivery vehicles, so long as such vehicles are engaged in the usual business or\nregular work of the owner and not used merely or mainly for advertising.\xe2\x80\x99\nAppellant is engaged in a nation-wide express business. It operates about 1,900 trucks in New York\nCity and sells the space on the exterior sides of these trucks for advertising. That advertising is for the\nmost part unconnected with its own business. It was convicted in the magistrates court and fined. The\njudgment of conviction was sustained in the Court of Special Sessions. The Court of Appeals affirmed\nwithout opinion by a divided vote. The case is here on appeal.\n* * * * {On the due process challenge, the Court stated:} We do not sit to weigh evidence on the due\nprocess issue in order to determine whether the regulation is sound or appropriate; nor is it our\nfunction to pass judgment on its wisdom. We would be trespassing on one of the most intensely local\nand specialized of all municipal problems if we held that this regulation had no relation to the traffic\nproblem of New York City. It is the judgment of the local authorities that it does have such a relation.\nAnd nothing has been advanced which shows that to be palpably false.\nThe question of equal protection of the laws is pressed more strenuously on us. It is pointed out that\nthe regulation draws the line between advertisements of products sold by the owner of the truck\nand general advertisements. It is argued that unequal treatment on the basis of such a distinction is\n272 | CHAPTER FIVE: Nonracial Classifications and Equal\nProtection - Part 1\n\n\x0cnot justified by the aim and purpose of the regulation. It is said, for example, that one of appellant\xe2\x80\x99s\ntrucks carrying the advertisement of a commercial house would not cause any greater distraction of\npedestrians and vehicle drivers than if the commercial house carried the same advertisement on its\nown truck. Yet the regulation allows the latter to do what the former is forbidden from doing. It is\ntherefore contended that the classification which the regulation makes has no relation to the traffic\nproblem since a violation turns not on what kind of advertisements are carried on trucks but on whose\ntrucks they are carried.\nThat, however, is a superficial way of analyzing the problem, even if we assume that it is premised on\nthe correct construction of the regulation. The local authorities may well have concluded that those\nwho advertised their own wares on their trucks do not present the same traffic problem in view of\nthe nature or extent of the advertising which they use. It would take a degree of omniscience which\nwe lack to say that such is not the case. If that judgment is correct, the advertising displays that are\nexempt have less incidence on traffic than those of appellants.\nWe cannot say that that judgment is not an allowable one. Yet if it is, the classification has relation to\nthe purpose for which it is made and does not contain the kind of discrimination against which the\nEqual Protection Clause affords protection. It is by such practical considerations based on experience\nrather than by theoretical inconsistencies that the question of equal protection is to be answered. And\nthe fact that New York City sees fit to eliminate from traffic this kind of distraction but does not touch\nwhat may be even greater ones in a different category, such as the vivid displays on Times Square, is\nimmaterial. It is no requirement of equal protection that all evils of the same genus be eradicated or\nnone at all. * * * *\nAffirmed.\nMr. Justice Rutledge acquiesces in the Court\xe2\x80\x99s opinion and judgment, dubitante on the question of\nequal protection of the laws.\nMR. JUSTICE JACKSON, CONCURRING.\nThere are two clauses of the Fourteenth Amendment which this Court may invoke to invalidate\nordinances by which municipal governments seek to solve their local problems. One says that no state\nshall \xe2\x80\x98deprive any person of life, liberty, or property, without due process of law\xe2\x80\x99. The other declares\nthat no state shall \xe2\x80\x98deny to any person within its jurisdiction the equal protection of the laws.\xe2\x80\x99\nMy philosophy as to the relative readiness with which we should resort to these two clauses is almost\ndiametrically opposed to the philosophy which prevails on this Court. While claims of denial of equal\nprotection are frequently asserted, they are rarely sustained. But the Court frequently uses the due\nprocess clause to strike down measures taken by municipalities to deal with activities in their streets\nand public places which the local authorities consider to create hazards, annoyances or discomforts to\ntheir inhabitants. And I have frequently dissented when I thought local power was improperly denied.\nThe burden should rest heavily upon one who would persuade us to use the due process clause\nto strike down a substantive law or ordinance. Even its provident use against municipal regulations\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 273\n\n\x0cfrequently disables all government\xe2\x80\x94state, municipal and federal from dealing with the conduct in\nquestion because the requirement of due process is also applicable to State and Federal Governments.\nInvalidation of a statute or an ordinance on due process grounds leaves ungoverned and ungovernable\nconduct which many people find objectionable.\nInvocation of the equal protection clause, on the other hand, does not disable any governmental body\nfrom dealing with the subject at hand. It merely means that the prohibition or regulation must have\na broader impact. I regard it as a salutary doctrine that cities, states and the Federal Government\nmust exercise their powers so as not to discriminate between their inhabitants except upon some\nreasonable differentiation fairly related to the object of regulation. This equality is not merely abstract\njustice. The framers of the Constitution knew, and we should not forget today, that there is no more\neffective practical guaranty against arbitrary and unreasonable government than to require that the\nprinciples of law which officials would impose upon a minority must be imposed generally. Conversely,\nnothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose\nonly a few to whom they will apply legislation and thus to escape the political retribution that might\nbe visited upon them if larger numbers were affected. Courts can take no better measure to assure\nthat laws will be just than to require that laws be equal in operation.\nThis case affords an illustration. Even casual observations from the sidewalks of New York will show\nthat an ordinance which would forbid all advertising on vehicles would run into conflict with many\ninterests, including some, if not all, of the great metropolitan newspapers, which use that advertising\nextensively. Their blandishment of the latest sensations is not less a cause of diverted attention and\ntraffic hazard than the commonplace cigarette advertisement which this truck-owner is forbidden to\ndisplay. But any regulation applicable to all such advertising would require much clearer justification\nin local conditions to enable its enactment than does some regulation applicable to a few. I do not\nmention this to criticize the motives of those who enacted this ordinance, but it dramatizes the point\nthat we are much more likely to find arbitrariness in the regulation of the few than of the many. Hence,\nfor my part, I am more receptive to attack on local ordinances for denial of equal protection than for\ndenial of due process, while the Court has more often used the latter clause.\nIn this case, if the City of New York should assume that display of any advertising on vehicles tends\nand intends to distract the attention of persons using the highways and to increase the dangers of its\ntraffic, I should think it fully within its constitutional powers to forbid it all. The same would be true\nif the City should undertake to eliminate or minimize the hazard by any generally applicable restraint,\nsuch as limiting the size, color, shape or perhaps to some extent the contents of vehicular advertising.\nInstead of such general regulation of advertising, however, the City seeks to reduce the hazard only\nby saying that while some may, others may not exhibit such appeals. The same display, for example,\nadvertising cigarettes, which this appellant is forbidden to carry on its trucks, may be carried on the\ntrucks of a cigarette dealer and might on the trucks of this appellant if it dealt in cigarettes. And almost\nan identical advertisement, certainly one of equal size, shape, color and appearance, may be carried\nby this appellant if it proclaims its own offer to transport cigarettes. But it may not be carried so long\nas the message is not its own but a cigarette dealer\xe2\x80\x99s offer to sell the same cigarettes.\nThe City urges that this applies equally to all persons of a permissible classification, because all that it\ndoes is (1) forbid all inhabitants of New York City from engaging in the business of selling advertising\n274 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cspace on trucks which move as part of the city traffic; (2) forbid all truck owners from incidentally\nemploying their vehicles for such purpose, with the exception that all truck owners can advertise\ntheir own business on their own trucks. It is argued that, while this does not eliminate vehicular\nadvertising, it does eliminate such advertising for hire and to this extent cuts down the hazard sought\nto be controlled.\nThat the difference between carrying on any business for hire and engaging in the same activity on\none\xe2\x80\x99s own is a sufficient one to sustain some types of regulations of the one that is not applied to\nthe other, is almost elementary. But it is usual to find such regulations applied to the very incidents\nwherein the two classes present different problems, such as in charges, liability and quality of service.\nThe difference, however, is invoked here to sustain a discrimination in a problem in which the two\nclasses present identical dangers. The courts of New York have declared that the sole nature and\npurpose of the regulation before us is to reduce traffic hazards. There is not even a pretense here\nthat the traffic hazard created by the advertising which is forbidden is in any manner or degree more\nhazardous than that which is permitted. It is urged with considerable force that this local regulation\ndoes not comply with the equal protection clause because it applies unequally upon classes whose\ndifferentiation is in no way relevant to the objects of the regulation.\nAs a matter of principle and in view of my attitude toward the equal protection clause, I do not\nthink differences of treatment under law should be approved on classification because of differences\nunrelated to the legislative purpose. The equal protection clause ceases to assure either equality or\nprotection if it is avoided by any conceivable difference that can be pointed out between those bound\nand those left free. This Court has often announced the principle that the differentiation must have\nan appropriate relation to the object of the legislation or ordinance. * * * *\nThe question in my mind comes to this. Where individuals contribute to an evil or danger in the same\nway and to the same degree, may those who do so for hire be prohibited, while those who do so for\ntheir own commercial ends but not for hire be allowed to continue? I think the answer has to be that\nthe hireling may be put in a class by himself and may be dealt with differently than those who act on\ntheir own. But this is not merely because such a discrimination will enable the lawmaker to diminish\nthe evil. That might be done by many classifications, which I should think wholly unsustainable. It is\nrather because there is a real difference between doing in self-interest and doing for hire, so that it\nis one thing to tolerate action from those who act on their own and it is another thing to permit the\nsame action to be promoted for a price.\n* * * * Of course, this appellant did not hold itself out to carry or display everybody\xe2\x80\x99s advertising, and\nits rental of space on the sides of its trucks was only incidental to the main business which brought\nits trucks into the streets. But it is not difficult to see that, in a day of extravagant advertising more\nor less subsidized by tax deduction, the rental of truck space could become an obnoxious enterprise.\nWhile I do not think highly of this type of regulation, that is not my business, and in view of the control\nI would concede to cities to protect citizens in quiet and orderly use for their proper purposes of the\nhighways and public places, I think the judgment below must be affirmed.\n\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 275\n\n\x0cDandridge v Williams\n397 U.S. 471 (1970)\nJUSTICE STEWART DELIVERED THE OPINION OF THE COURT IN WHICH BURGER, C.J., AND BLACK, HARLAN, AND WHITE,\nJJ JOINED. BLACK., J. ISSUED A CONCURRING OPINION IN WHICH BURGER, C.J., JOINED. HARLAN, J., ISSUED A\nCONCURRING OPINION. DOUGLAS., J., ISSUED A DISSENTING OPINION, IN WHICH BRENNAN, J., JOINED. MARSHALL, J.,\nISSUED A DISSENTING OPINION, IN WHICH BRENNAN, J., JOINED.\nMR. JUSTICE STEWART DELIVERED THE OPINION OF THE COURT.\nThis case involves the validity of a method used by Maryland, in the administration of an aspect of\nits public welfare program, to reconcile the demands of its needy citizens with the finite resources\navailable to meet those demands. Like every other State in the Union, Maryland participates in the\nFederal Aid to Families with Dependent Children (AFDC) program, 42 U.S.C. \xc2\xa7 601 et seq. (1964 ed. and\nSupp. IV), which originated with the Social Security Act of 1935.\nUnder this jointly financed program, a State computes the so-called \xe2\x80\x9cstandard of need\xe2\x80\x9d of each eligible\nfamily unit within its borders. Some States provide that every family shall receive grants sufficient to\nmeet fully the determined standard of need. Other States provide that each family unit shall receive a\npercentage of the determined need. Still others provide grants to most families in full accord with the\nascertained standard of need, but impose an upper limit on the total amount of money any one family\nunit may receive. Maryland, through administrative adoption of a \xe2\x80\x9cmaximum grant regulation,\xe2\x80\x9d has\nfollowed this last course. This suit was brought by several AFDC recipients to enjoin the application of\nthe Maryland maximum grant regulation on the ground that it is in conflict with the Social Security\nAct of 1935 and with the Equal Protection Clause of the Fourteenth Amendment.\n****\nThe operation of the Maryland welfare system is not complex. By statute, the State participates in\nthe AFDC program. It computes the standard of need for each eligible family based on the number\nof children in the family and the circumstances under which the family lives. In general, the standard\nof need increases with each additional person in the household, but the increments become\nproportionately smaller. The regulation here in issue imposes upon the grant that any single family\nmay receive an upper limit of $250 per month in certain counties and Baltimore City, and of $240\nper month elsewhere in the State. The appellees all have large families, so that their standards of\nneed, as computed by the State, substantially exceed the maximum grants that they actually receive\nunder the regulation. The appellees urged in the District Court that the maximum grant limitation\noperates to discriminate against them merely because of the size of their families, in violation of the\nEqual Protection Clause of the Fourteenth Amendment. They claimed further that the regulation is\nincompatible with the purpose of the Social Security Act of 1935, as well as in conflict with its explicit\nprovisions.\nIn its original opinion, the District Court held that the Maryland regulation does conflict with the\n276 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cfederal statute, and also concluded that it violates the Fourteenth Amendment\xe2\x80\x99s equal protection\nguarantee. After reconsideration on motion, the court issued a new opinion resting its determination\nof the regulation\xe2\x80\x99s invalidity entirely on the constitutional ground. Both the statutory and\nconstitutional issues have been fully briefed and argued here, and the judgment of the District Court\nmust, of course, be affirmed if the Maryland regulation is in conflict with either the federal statute or\nthe Constitution. We consider the statutory question first, because, if the appellees\xe2\x80\x99 position on this\nquestion is correct, there is no occasion to reach the constitutional issues. Ashwander v. TVA (1936)\n(Brandeis, J., concurring).\n\nI\n{The Court found that the Maryland statute did not conflict with the Social Security Act}\n\nII\nAlthough a State may adopt a maximum grant system in allocating its funds available for AFDC\npayments without violating the Act, it may not, of course, impose a regime of invidious discrimination\nin violation of the Equal Protection Clause of the Fourteenth Amendment. Maryland says that its\nmaximum grant regulation is wholly free of any invidiously discriminatory purpose or effect, and\nthat the regulation is rationally supportable on at least four entirely valid grounds. The regulation\ncan be clearly justified, Maryland argues, in terms of legitimate state interests in encouraging gainful\nemployment, in maintaining an equitable balance in economic status as between welfare families\nand those supported by a wage-earner, in providing incentives for family planning, and in allocating\navailable public funds in such a way as fully to meet the needs of the largest possible number of\nfamilies. The District Court, while apparently recognizing the validity of at least some of these state\nconcerns, nonetheless held that the regulation \xe2\x80\x9cis invalid on its face for overreaching,\xe2\x80\x9d\xe2\x80\x94that it violates\nthe Equal Protection Clause \xe2\x80\x9c[b]ecause it cuts too broad a swath on an indiscriminate basis as applied\nto the entire group of AFDC eligibles to which it purports to apply. . . .\xe2\x80\x9d * * * * {T}he concept of\n\xe2\x80\x9coverreaching\xe2\x80\x9d has no place in this case. For here we deal with state regulation in the social and\neconomic field, not affecting freedoms guaranteed by the Bill of Rights, and claimed to violate the\nFourteenth Amendment only because the regulation results in some disparity in grants of welfare\npayments to the largest AFDC families. For this Court to approve the invalidation of state economic\nor social regulation as \xe2\x80\x9coverreaching\xe2\x80\x9d would be far too reminiscent of an era when the Court thought\nthe Fourteenth Amendment gave it power to strike down state laws \xe2\x80\x9cbecause they may be unwise,\nimprovident, or out of harmony with a particular school of thought.\xe2\x80\x9d Williamson v. Lee Optical Co.\n(1955). That era long ago passed into history.\nIn the area of economics and social welfare, a State does not violate the Equal Protection Clause\nmerely because the classifications made by its laws are imperfect. If the classification has some\n\xe2\x80\x9creasonable basis,\xe2\x80\x9d it does not offend the Constitution simply because the classification \xe2\x80\x9cis not made\nwith mathematical nicety or because in practice it results in some inequality.\xe2\x80\x9d\n\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 277\n\n\x0cThe problems of government are practical ones, and may justify, if they do not require, rough\naccommodations\xe2\x80\x94illogical, it may be, and unscientific. \xe2\x80\x9cA statutory discrimination will not be set aside\nif any state of facts reasonably may be conceived to justify it.\xe2\x80\x9d\nTo be sure, the cases cited, and many others enunciating this fundamental standard under the\nEqual Protection Clause, have, in the main, involved state regulation of business or industry. The\nadministration of public welfare assistance, by contrast, involves the most basic economic needs\nof impoverished human beings. We recognize the dramatically real factual difference between the\ncited cases and this one, but we can find no basis for applying a different constitutional standard.\nIt is a standard that has consistently been applied to State legislation restricting the availability of\nemployment opportunities. And it is a standard that is true to the principle that the Fourteenth\nAmendment gives the federal courts no power to impose upon the States their views of what\nconstitutes wise economic or social policy.\nUnder this long-established meaning of the Equal Protection Clause, it is clear that the Maryland\nmaximum grant regulation is constitutionally valid. We need not explore all the reasons that the State\nadvances in justification of the regulation. It is enough that a solid foundation for the regulation can\nbe found in the State\xe2\x80\x99s legitimate interest in encouraging employment and in avoiding discrimination\nbetween welfare families and the families of the working poor. By combining a limit on the recipient\xe2\x80\x99s\ngrant with permission to retain money earned, without reduction in the amount of the grant,\nMaryland provides an incentive to seek gainful employment. And by keying the maximum family AFDC\ngrants to the minimum wage a steadily employed head of a household receives, the State maintains\nsome semblance of an equitable balance between families on welfare and those supported by an\nemployed breadwinner.\nIt is true that, in some AFDC families, there may be no person who is employable. It is also true that\nwith respect to AFDC families whose determined standard of need is below the regulatory maximum,\nand who therefore receive grants equal to the determined standard, the employment incentive is\nabsent. But the Equal Protection Clause does not require that a State must choose between attacking\nevery aspect of a problem or not attacking the problem at all. It is enough that the State\xe2\x80\x99s action be\nrationally based and free from invidious discrimination. The regulation before us meets that test.\nWe do not decide today that the Maryland regulation is wise, that it best fulfills the relevant social\nand economic objectives that Maryland might ideally espouse, or that a more just and humane\nsystem could not be devised. Conflicting claims of morality and intelligence are raised by opponents\nand proponents of almost every measure, certainly including the one before us. But the intractable\neconomic, social, and even philosophical problems presented by public welfare assistance programs\nare not the business of this Court. * * * *\nThe judgment is reversed.\nMR. JUSTICE MARSHALL, WHOM MR. JUSTICE BRENNAN JOINS, DISSENTING.\n* * * * In the final analysis, Maryland has set up an AFDC program structured to calculate and pay the\nminimum standard of need to dependent children. Having set up that program, however, the State\n278 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cdenies some of those needy children the minimum subsistence standard of living, and it does so on the\nwholly arbitrary basis that they happen to be members of large families. One need not speculate too\nfar on the actual reason for the regulation, for in the early stages of this litigation the State virtually\nconceded that it set out to limit the total cost of the program along the path of least resistance. Now,\nhowever, we are told that other rationales can be manufactured to support the regulation and to\nsustain it against a fundamental constitutional challenge.\nHowever, these asserted state interests, which are not insignificant in themselves, are advanced either\nnot at all or by complete accident by the maximum grant regulation. Clearly they could be served\nby measures far less destructive of the individual interests at stake. Moreover, the device assertedly\nchosen to further them is at one and the same time both grossly underinclusive-because it does not\napply at all to a much larger class in an equal position-and grossly overinclusive-because it applies so\nstrongly against a substantial class as to which it can rationally serve no end. Were this a case of pure\nbusiness regulation, these defects would place it beyond what has heretofore seemed a borderline\ncase, see, e.g., Railway Express Agency v. New York (1949), and I do not believe that the regulation can\nbe sustained even under the Court\xe2\x80\x99s \xe2\x80\x98reasonableness\xe2\x80\x99 test.\nIn any event, it cannot suffice merely to invoke the spectre of the past and to recite from * * * *\nand Williamson v. Lee Optical of Oklahoma, Inc. to decide the case. Appellees are not a gas company\nor an optical dispenser; they are needy dependent children and families who are discriminated\nagainst by the State. The basis of that discrimination-the classification of individuals into large\nand small families-is too arbitrary and too unconnected to the asserted rationale, the impact on\nthose discriminated against-the denial of even a subsistence existence-too great, and the supposed\ninterests served too contrived and attenuated to meet the requirements of the Constitution. In\nmy view Maryland\xe2\x80\x99s maximum grant regulation is invalid under the Equal Protection Clause of the\nFourteenth Amendment.\nMR. JUSTICE DOUGLAS, DISSENTING {OMITTED}{ARGUING THAT MARYLAND SCHEME IS INVALID UNDER FEDERAL SOCIAL\nSECURITY ACT}.\nMR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS, DISSENTING {OMITTED}{ARGUING THAT MARYLAND\nSCHEME IS INVALID UNDER FEDERAL SOCIAL SECURITY ACT}.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=37#h5p-75\n\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 279\n\n\x0cNotes\n1. The lowest tier of Equal Protection judicial review is generally referred to as \xe2\x80\x9crational basis\xe2\x80\x9d\nreview. Under this standard, the government interest need only be legitimate and the means chosen\nreasonably (or rationally) related to that interest. The Courts in Railway Express and Dandridge are\nexceedingly deferential: even if the government interest is not entirely clear or logical, the Court\nwill defer. In a more recent case, FCC v. Beach Communications, Inc., 508 U.S. 307 (1993), in an\nopinion by Justice Thomas, the Court went so far as to say that in \xe2\x80\x9careas of social and economic\npolicy, a statutory classification\xe2\x80\x9d should be \xe2\x80\x9cupheld against equal protection challenge if there is\nany reasonably conceivable state of facts that could provide a rational basis for the classification.\xe2\x80\x9d\nHowever, this does not mean that classifications subject to rational basis review are always\nconstitutional.\n2. Both Railway Express and Dandridge make reference to the Court\xe2\x80\x99s role as not venturing to decide\nthe wisdom of the legislative action under review. This is an allusion to the so-called Lochner-era of\nDue Process discussed in a subsequent chapter.\n3. Dandridge cites the so-called \xe2\x80\x9cAshwander doctrine,\xe2\x80\x9d from Ashwander v. TVA, 297 U.S. 288 (1936), also\nknown as constitutional avoidance. One might think of this as a component of judicial restraint or\npassive virtues. Under this principle, courts should decide cases on the narrower grounds of statutes\nbefore reaching the constitutional issues. Recall previous cases in which there has been a mix of\nstatutory and constitutional claims in previous cases. How might you use the Ashwander doctrine as\nan attorney?\n\nII. Sex/Gender Classifications\nA. Early Cases\nNote: Bradwell v. Illinois\nIn Bradwell v. Illinois, 83 U.S. (16 Wall) 130 (1873), the issue before the Court was whether Illinois\xe2\x80\x99 denial\nof a license to practice law to \xe2\x80\x9cMrs.\xe2\x80\x9d Myra Bradwell because she was a married woman violated the\nFourteenth Amendment. Rather than Equal Protection, the case rested on the Privileges or Immunities\nClause and the Court relied on The Slaughter-House Cases, decided the day before, to hold that\npracticing law was not a one of the privileges or immunities protected by the Fourteenth Amendment\n(or by the Privileges and Immunities Clause of Article IV). The case, however, is most famous for the\n\n280 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cconcurring opinion of Justice Bradley (the same Justice who wrote the Court\xe2\x80\x99s opinion in the Civil\nRights Cases), which did not contain a single citation.\nMR. JUSTICE BRADLEY [CONCURRING]:\nI concur in the judgment of the court in this case, by which the judgment of the Supreme Court of\nIllinois is affirmed, but not for the reasons specified in the opinion just read. The claim of the plaintiff,\nwho is a married woman, to be admitted to practice as an attorney and counsellor-at-law, is based\nupon the supposed right of every person, man or woman, to engage in any lawful employment for a\nlivelihood. The Supreme Court of Illinois denied the application on the ground that, by the common\nlaw, which is the basis of the laws of Illinois, only men were admitted to the bar, and the legislature had\nnot made any change in this respect, but had simply provided that no person should be admitted to\npractice as attorney or counsellor without having previously obtained a license for that purpose from\ntwo justices of the {state} Supreme Court, and that no person should receive a license without first\nobtaining a certificate from the court of some county of his good moral character. In other respects\nit was left to the discretion of the court to establish the rules by which admission to the profession\nshould be determined. The court, however, regarded itself as bound by at least two limitations. One\nwas that it should establish such terms of admission as would promote the proper administration\nof justice, and the other that it should not admit any persons, or class of persons, not intended by\nthe legislature to be admitted, even though not expressly excluded by statute. In view of this latter\nlimitation the court felt compelled to deny the application of females to be admitted as members of\nthe bar. Being contrary to the rules of the common law and the usages of Westminster Hall from time\nimmemorial, it could not be supposed that the legislature had intended to adopt any different rule.\nThe claim that, under the fourteenth amendment of the Constitution, which declares that no State\nshall make or enforce any law which shall abridge the privileges and immunities of citizens of the\nUnited States, the statute law of Illinois, or the common law prevailing in that State, can no longer\nbe set up as a barrier against the right of females to pursue any lawful employment for a livelihood\n(the practice of law included), assumes that it is one of the privileges and immunities of women as\ncitizens to engage in any and every profession, occupation, or employment in civil life. It certainly\ncannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental\nprivileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has\nalways recognized a wide difference in the respective spheres and destinies of man and woman. Man\nis, or should be, woman\xe2\x80\x99s protector and defender. The natural and proper timidity and delicacy which\nbelongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution\nof the family organization, which is founded in the divine ordinance, as well as in the nature of\nthings, indicates the domestic sphere as that which properly belongs to the domain and functions of\nwomanhood. The harmony, not to say identity, of interest and views which belong, or should belong,\nto the family institution is repugnant to the idea of a woman adopting a distinct and independent\ncareer from that of her husband. So firmly fixed was this sentiment in the founders of the common\nlaw that it became a maxim of that system of jurisprudence that a woman had no legal existence\nseparate from her husband, who was regarded as her head and representative in the social state; and,\nnotwithstanding some recent modifications of this civil status, many of the special rules of law flowing\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 281\n\n\x0cfrom and dependent upon this cardinal principle still exist in full force in most States. One of these is,\nthat a married woman is incapable, without her husband\xe2\x80\x99s consent, of making contracts which shall be\nbinding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois\ndeemed important in rendering a married woman incompetent fully to perform the duties and trusts\nthat belong to the office of an attorney and counsellor.\nIt is true that many women are unmarried and not affected by any of the duties, complications,\nand incapacities arising out of the married state, but these are exceptions to the general rule. The\nparamount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.\nThis is the law of the Creator. And the rules of civil society must be adapted to the general constitution\nof things, and cannot be based upon exceptional cases.\nThe humane movements of modern society, which have for their object the multiplication of avenues\nfor woman\xe2\x80\x99s advancement, and of occupations adapted to her condition and sex, have my heartiest\nconcurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to\nbe admitted into every office and position, including those which require highly special qualifications\nand demanding special responsibilities. In the nature of things it is not every citizen of every age, sex,\nand condition that is qualified for every calling and position. It is the prerogative of the legislator to\nprescribe regulations founded on nature, reason, and experience for the due admission of qualified\npersons to professions and callings demanding special skill and confidence. This fairly belongs to the\npolice power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and\nmission of woman, it is within the province of the legislature to ordain what offices, positions, and\ncallings shall be filled and discharged by men, and shall receive the benefit of those energies and\nresponsibilities, and that decision and firmness which are presumed to predominate in the sterner\nsex.\nFor these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge\nof abridging any of the privileges and immunities of citizens of the United States.\nMR. JUSTICE SWAYNE AND MR. JUSTICE FIELD CONCURRED IN THE FOREGOING OPINION OF MR. JUSTICE BRADLEY.\nTHE CHIEF JUSTICE {SALMON CHASE} DISSENTED FROM THE JUDGMENT OF THE COURT, AND FROM ALL THE OPINIONS.\n\nNote: Minor v. Happersett\nIn Minor v. Happersett, 88 U.S. (12 Wall.) 162 (1874), the issue was the constitutionality of a Missouri\nstatute that provided, \xe2\x80\x9cEvery male citizen of the United States shall be entitled to vote.\xe2\x80\x9d\nThe case arose when\nMrs. Virginia Minor, a native born, free, white citizen of the United States, and of the State of\nMissouri, over the age of twenty-one years, wishing to vote for electors for President and VicePresident of the United States, and for a representative in Congress, and for other officers, at\nthe general election held in November, 1872, applied to one Happersett, the registrar of voters,\n282 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cto register her as a lawful voter, which he refused to do, assigning for cause that she was not a\n\xe2\x80\x9cmale citizen of the United States,\xe2\x80\x9d but a woman.\nThe Court declared that\nThere is no doubt that women may be citizens. They are persons, and by the fourteenth\namendment \xe2\x80\x9call persons born or naturalized in the United States and subject to the jurisdiction\nthereof\xe2\x80\x9d are expressly declared to be \xe2\x80\x9ccitizens of the United States and of the State wherein\nthey reside.\xe2\x80\x9d But, in our opinion, it did not need this amendment to give them that position.\nBefore its adoption the Constitution of the United States did not in terms prescribe who\nshould be citizens of the United States or of the several States, yet there were necessarily such\ncitizens without such provision. There cannot be a nation without a people. The very idea of\na political community, such as a nation is, implies an association of persons for the promotion\nof their general welfare.\nNote that the Court stated that this citizenship flows from the Fourteenth Amendment\xe2\x80\x99s first\nsentence, which reversed Dred Scott, and that this citizenship predates the Fourteenth Amendment,\npresumably limited to women who were not enslaved.\nThe Court, however, unanimously held that suffrage (the right to vote) was not within the Fourteenth\nAmendment\xe2\x80\x99s protections, specifically privileges or immunities. In support, the Court pointed to the\nFifteenth Amendment, which provides \xe2\x80\x9cThe right of citizens of the United States to vote shall not\nbe denied or abridged by the United States, or by any State, on account of race, color, or previous\ncondition of servitude.\xe2\x80\x9d If the Fourteenth Amendment included the right to vote, the Court reasoned,\nthere would have been no need for the Fifteenth.\nThe Court concluded:\nWe have given this case the careful consideration its importance demands. If the law is wrong,\nit ought to be changed; but the power for that is not with us. The arguments addressed to us\nbearing upon such a view of the subject may perhaps be sufficient to induce those having the\npower, to make the alteration, but they ought not to be permitted to influence our judgment\nin determining the present rights of the parties now litigating before us. No argument as to\nwoman\xe2\x80\x99s need of suffrage can be considered. We can only act upon her rights as they exist. It\nis not for us to look at the hardship of withholding. Our duty is at an end if we find it is within\nthe power of a State to withhold.\nThe Nineteenth Amendment providing for women\xe2\x80\x99s suffrage was introduced in Congress a few years\nafter Minor. It was submitted to the states for ratification in 1919 and adopted in 1920, 46 years after\nMinor.\n\nGoesaert v. Cleary\n335 U.S. 464 (1948)\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 283\n\n\x0cFRANKFURTER, J. DELIVERED THE OPINION OF THE COURT IN WHICH VINSON, C.J., AND BLACK, REED, JACKSON, AND\nBURTON, JJ., JOINED. RUTLEDGE, J., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND MURPHY, JJ., JOINED.\nMR. JUSTICE FRANKFURTER DELIVERED THE OPINION OF THE COURT.\nAs part of the Michigan system for controlling the sale of liquor, bartenders are required to be licensed\nin all cities having a population of 50,000, or more, but no female may be so licensed unless she be\n\xe2\x80\x98the wife or daughter of the male owner\xe2\x80\x99 of a licensed liquor establishment. The case is here on direct\nappeal from an order of the District Court of three judges, * * * * denying an injunction to restrain the\nenforcement of the Michigan law. The claim, denied below, one judge dissenting, and renewed here,\nis that Michigan cannot forbid females generally from being barmaids and at the same time make an\nexception in favor of the wives and daughters of the owners of liquor establishments. Beguiling as the\nsubject is, it need not detain us long. To ask whether or not the Equal Protection of the Laws Clause\nof the Fourteenth Amendment barred Michigan from making the classification the State has made\nbetween wives and daughters of owners of liquor places and wives and daughters of non-owners, is\none of those rare instances where to state the question is in effect to answer it.\nWe are, to be sure, dealing with a historic calling. We meet the alewife, sprightly and ribald, in\nShakespeare, but centuries before him she played a role in the social life of England. See, e.g.,\nJusserand, English Wayfaring Life (1889). The Fourteenth Amendment did not tear history up by the\nroots, and the regulation of the liquor traffic is one of the oldest and most untrammeled of legislative\npowers. Michigan could, beyond question, forbid all women from working behind a bar. This is so\ndespite the vast changes in the social and legal position of women. The fact that women may now have\nachieved the virtues that men have long claimed as their prerogatives and now indulge in vices that\nmen have long practiced, does not preclude the States from drawing a sharp line between the sexes,\ncertainly, in such matters as the regulation of the liquor traffic. The Constitution does not require\nlegislatures to reflect sociological insight, or shifting social standards, any more than it requires them\nto keep abreast of the latest scientific standards.\nWhile Michigan may deny to all women opportunities for bartending, Michigan cannot play favorites\namong women without rhyme or reasons. The Constitution in enjoining the equal protection of the\nlaws upon States precludes irrational discrimination as between persons or groups of persons in the\nincidence of a law. But the Constitution does not require situations \xe2\x80\x98which are different in fact or\nopinion to be treated in law as though they were the same.\xe2\x80\x99 Since bartending by women may, in the\nallowable legislative judgment, give rise to moral and social problems against which it may devise\npreventive measures, the legislature need not go to the full length of prohibition if it believes that as\nto a defined group of females other factors are operating which either eliminate or reduce the moral\nand social problems otherwise calling for prohibition. Michigan evidently believes that the oversight\nassured through ownership of a bar by a barmaid\xe2\x80\x99s husband or father minimizes hazards that may\nconfront a barmaid without such protecting oversight. This Court is certainly not in a position to\ngainsay such belief by the Michigan legislature. If it is entertainable, as we think it is, Michigan has\nnot violated its duty to afford equal protection of its laws. We cannot cross-examine either actually\nor argumentatively the mind of Michigan legislators nor question their motives. Since the line they\n\n284 | Liberty, Equality, and Due Process: Third Edition\n\n\x0chave drawn is not without a basis in reason, we cannot give ear to the suggestion that the real impulse\nbehind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling.\nIt would be an idle parade of familiar learning to review the multitudinous cases in which the\nconstitutional assurance of the equal protection of the laws has been applied. The generalties on the\nsubject are not in dispute; their application turns peculiarly on the particular circumstances of a case.\n* * * *Suffice it to say that \xe2\x80\x98A statute is not invalid under the Constitution because it might have gone\nfarther than it did, or because it may not succeed in bringing about the result that it tends to produce.\xe2\x80\x99\nNor is it unconstitutional for Michigan to withdraw from women the occupation of bartending\nbecause it allows women to serve as waitresses where liquor is dispensed. The District Court has\nsufficiently indicated the reasons that may have influenced the legislature in allowing women to be\nwaitresses in a liquor establishment over which a man\xe2\x80\x99s ownership provides control. Nothing need be\nadded to what was said below as to the other grounds on which the Michigan law was assailed.\nJudgment affirmed.\nMR. JUSTICE RUTLEDGE, WITH WHOM MR. JUSTICE DOUGLAS AND MR. JUSTICE MURPHY JOIN, DISSENTING.\nWhile the equal protection clause does not require a legislature to achieve \xe2\x80\x98abstract symmetry\xe2\x80\x99 or\nto classify with \xe2\x80\x98mathematical nicety,\xe2\x80\x99 that clause does require lawmarkers to refrain from invidious\ndistinctions of the sort drawn by the statute challenged in this case.\nThe statute arbitrarily discriminates between male and female owners of liquor establishments. A\nmale owner, although he himself is always absent from his bar, may employ his wife and daughter as\nbarmaids. A female owner may neither work as a barmaid herself nor employ her daughter in that\nposition, even if a man is always present in the establishment to keep order. This inevitable result of\nthe classification belies the assumption that the statute was motivated by a legislative solicitude for\nthe moral and physical well-being of women who, but for the law, would be employed as barmaids.\nSince there could be no other conceivable justification for such discrimination against women owners\nof liquor establishments, the statute should be held invalid as a denial of equal protection.\n\nB. Developing Intermediate Scrutiny\n\nReed v. Reed\n404 U.S. 71 (1971)\nBURGER, C.J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.\nRichard Lynn Reed, a minor, died intestate in Ada County, Idaho, on March 29, 1967. His adoptive\nparents, who had separated sometime prior to his death, are the parties to this appeal. Approximately\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 285\n\n\x0cseven months after Richard\xe2\x80\x99s death, his mother, appellant Sally Reed, filed a petition in the Probate\nCourt of Ada County, seeking appointment as administratrix of her son\xe2\x80\x99s estate. Prior to the date\nset for a hearing on the mother\xe2\x80\x99s petition, appellee Cecil Reed, the father of the decedent, filed a\ncompeting petition seeking to have himself appointed administrator of the son\xe2\x80\x99s estate. The probate\ncourt held a joint hearing on the two petitions and thereafter ordered that letters of administration be\nissued to appellee Cecil Reed upon his taking the oath and filing the bond required by law. The court\ntreated \xc2\xa7\xc2\xa7 15-312 and 15-314 of the Idaho Code as the controlling statutes, and read those sections as\ncompelling a preference for Cecil Reed because he was a male.\nSection 15-312 designates the persons who are entitled to administer the estate of one who dies\nintestate. In making these designations, that section lists 11 classes of persons who are so entitled,\nand provides, in substance, that the order in which those classes are listed in the section shall be\ndeterminative of the relative rights of competing applicants for letters of administration. One of the\n11 classes so enumerated is \xe2\x80\x9c[t]he father or mother\xe2\x80\x9d of the person dying intestate. Under this section,\nthen, appellant and appellee, being members of the same entitlement class, would seem to have been\nequally entitled to administer their son\xe2\x80\x99s estate. Section 1314 provides, however, that\n[o]f several persons claiming and equally entitled [under \xc2\xa7 1312] to administer, males must be\npreferred to females, and relatives of the whole to those of the half blood.\nIn issuing its order, the probate court implicitly recognized the equality of entitlement of the two\napplicants under \xc2\xa7 15-312, and noted that neither of the applicants was under any legal disability; the\ncourt ruled, however, that appellee, being a male, was to be preferred to the female appellant \xe2\x80\x9cby\nreason of Section 15-314 of the Idaho Code.\xe2\x80\x9d In stating this conclusion, the probate judge gave no\nindication that he had attempted to determine the relative capabilities of the competing applicants\nto perform the functions incident to the administration of an estate. It seems clear the probate judge\nconsidered himself bound by statute to give preference to the male candidate over the female, each\nbeing otherwise \xe2\x80\x9cequally entitled.\xe2\x80\x9d\nSally Reed appealed from the probate court order, and her appeal was treated by the District Court of\nthe Fourth Judicial District of Idaho as a constitutional attack on \xc2\xa7 15-314. In dealing with the attack,\nthat court held that the challenged section violated the Equal Protection Clause of the Fourteenth\nAmendment, and was, therefore, void; the matter was ordered \xe2\x80\x9creturned to the Probate Court for its\ndetermination of which of the two parties\xe2\x80\x9d was better qualified to administer the estate.\nThis order was never carried out, however, for Cecil Reed took a further appeal to the Idaho Supreme\nCourt, which reversed the District Court and reinstated the original order naming the father\nadministrator of the estate. In reaching this result, the Idaho Supreme Court first dealt with the\ngoverning statutory law and held that, under \xc2\xa7 15-312 \xe2\x80\x9ca father and mother are \xe2\x80\x98equally entitled\xe2\x80\x99 to\nletters of administration,\xe2\x80\x9d but the preference given to males by \xc2\xa7 15-314 is \xe2\x80\x9cmandatory\xe2\x80\x9d and leaves no\nroom for the exercise of a probate court\xe2\x80\x99s discretion in the appointment of administrators. Having\nthus definitively and authoritatively interpreted the statutory provisions involved, the Idaho Supreme\nCourt then proceeded to examine, and reject, Sally Reed\xe2\x80\x99s contention that \xc2\xa7 15-314 violates the Equal\nProtection Clause by giving a mandatory preference to males over females, without regard to their\nindividual qualifications as potential estate administrators.\n286 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cSally Reed thereupon appealed for review by this Court * * * * and we noted probable jurisdiction.\nHaving examined the record and considered the briefs and oral arguments of the parties, we have\nconcluded that the arbitrary preference established in favor of males by \xc2\xa7 15-314 of the Idaho Code\ncannot stand in the face of the Fourteenth Amendment\xe2\x80\x99s command that no State deny the equal\nprotection of the laws to any person within its jurisdiction.\nIdaho does not, of course, deny letters of administration to women altogether. Indeed, under \xc2\xa7 15-312,\na woman whose spouse dies intestate has a preference over a son, father, brother, or any other male\nrelative of the decedent. Moreover, we can judicially notice that, in this country, presumably due to the\ngreater longevity of women, a large proportion of estates, both intestate and under wills of decedents,\nare administered by surviving widows.\nSection 15-314 is restricted in its operation to those situations where competing applications for\nletters of administration have been filed by both male and female members of the same entitlement\nclass established by \xc2\xa7 15-312. In such situations, \xc2\xa7 15-314 provides that different treatment be accorded\nto the applicants on the basis of their sex; it thus establishes a classification subject to scrutiny under\nthe Equal Protection Clause.\nIn applying that clause, this Court has consistently recognized that the Fourteenth Amendment\ndoes not deny to States the power to treat different classes of persons in different ways. Railway\nExpress Agency v. New York (1949). The Equal Protection Clause of that amendment does, however,\ndeny to States the power to legislate that different treatment be accorded to persons placed by a\nstatute into different classes on the basis of criteria wholly unrelated to the objective of that statute.\nA classification must be reasonable, not arbitrary, and must rest upon some ground of difference\nhaving a fair and substantial relation to the object of the legislation, so that all persons similarly\ncircumstanced shall be treated alike.\nThe question presented by this case, then, is whether a difference in the sex of competing applicants\nfor letters of administration bears a rational relationship to a state objective that is sought to be\nadvanced by the operation of \xc2\xa7\xc2\xa7 15-312 and 15-314.\nIn upholding the latter section, the Idaho Supreme Court concluded that its objective was to eliminate\none area of controversy when two or more persons, equally entitled under \xc2\xa7 15-312, seek letters of\nadministration, and thereby present the probate court \xe2\x80\x9cwith the issue of which one should be named.\xe2\x80\x9d\nThe court also concluded that, where such persons are not of the same sex, the elimination of females\nfrom consideration \xe2\x80\x9cis neither an illogical nor arbitrary method devised by the legislature to resolve\nan issue that would otherwise require a hearing as to the relative merits . . . of the two or more\npetitioning relatives. . . .\xe2\x80\x9d\nClearly the objective of reducing the workload on probate courts by eliminating one class of contests\nis not without some legitimacy. The crucial question, however, is whether \xc2\xa7 15-314 advances that\nobjective in a manner consistent with the command of the Equal Protection Clause. We hold that\nit does not. To give a mandatory preference to members of either sex over members of the other,\nmerely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary\nlegislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 287\n\n\x0cwhatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this\ncontext may not lawfully be mandated solely on the basis of sex.\nWe note finally that, if \xc2\xa7 15-314 is viewed merely as a modifying appendage to \xc2\xa7 15-312 and as aimed\nat the same objective, its constitutionality is not thereby saved. The objective of \xc2\xa7 15-312 clearly is\nto establish degrees of entitlement of various classes of persons in accordance with their varying\ndegrees and kinds of relationship to the intestate. Regardless of their sex, persons within any one\nof the enumerated classes of that section are similarly situated with respect to that objective. By\nproviding dissimilar treatment for men and women who are thus similarly situated, the challenged\nsection violates the Equal Protection Clause.\nThe judgment of the Idaho Supreme Court is reversed, and the case remanded for further proceedings\nnot inconsistent with this opinion.\nReversed and remanded.\n\nFrontiero v. Richardson\n411 U.S. 677 (1973)\nBRENNAN, J., ANNOUNCED THE COURT\xe2\x80\x99S JUDGMENT AND DELIVERED AN OPINION, IN WHICH DOUGLAS, WHITE, AND\nMARSHALL, JJ., JOINED. STEWART, J., FILED A STATEMENT CONCURRING IN THE JUDGMENT. POWELL, J., FILED AN OPINION\nCONCURRING IN THE JUDGMENT, IN WHICH BURGER, C. J., AND BLACKMUN, J., JOINED. REHNQUIST, J., FILED A\nDISSENTING STATEMENT.\nMR. JUSTICE BRENNAN ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION IN WHICH MR. JUSTICE DOUGLAS,\nMR. JUSTICE WHITE, AND MR. JUSTICE MARSHALL JOIN.\nThe question before us concerns the right of a female member of the uniformed services to claim\nher spouse as a \xe2\x80\x9cdependent\xe2\x80\x9d for the purposes of obtaining increased quarters allowances and medical\nand dental benefits under 37 U.S.C. 401, 403, and 10 U.S.C. 1072, 1076, on an equal footing with male\nmembers. Under these statutes, a serviceman may claim his wife as a \xe2\x80\x9cdependent\xe2\x80\x9d without regard\nto whether she is in fact dependent upon him for any part of her support. A servicewoman, on the\nother hand, may not claim her husband as a \xe2\x80\x9cdependent\xe2\x80\x9d under these programs unless he is in fact\ndependent upon her for over one-half of his support. Thus, the question for decision is whether\nthis difference in treatment constitutes an unconstitutional discrimination against servicewomen\nin violation of the Due Process Clause of the Fifth Amendment. A three-judge District Court for\nthe Middle District of Alabama, one judge dissenting, rejected this contention and sustained the\nconstitutionality of the provisions of the statutes making this distinction. We noted probable\njurisdiction. We reverse.\n\n288 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cI\n* * * * Appellant Sharron Frontiero, a lieutenant in the United States Air Force, sought increased\nquarters allowances, and housing and medical benefits for her husband, appellant Joseph Frontiero,\non the ground that he was her \xe2\x80\x9cdependent.\xe2\x80\x9d Although such benefits would automatically have been\ngranted with respect to the wife of a male member of the uniformed services, appellant\xe2\x80\x99s application\nwas denied because she failed to demonstrate that her husband was dependent on her for more\nthan one-half of his support. Appellants then commenced this suit, contending that, by making this\ndistinction, the statutes unreasonably discriminate on the basis of sex in violation of the Due Process\nClause of the Fifth Amendment. {footnote 5 states: \xe2\x80\x9c[W]hile the Fifth Amendment contains no equal\nprotection clause, it does forbid discrimination that is \xe2\x80\x9cso unjustifiable as to be violative of due\nprocess,\xe2\x80\x99\xe2\x80\x9d and includes a citation to Bolling v. Sharpe (1954)}.\nIn essence, appellants asserted that the discriminatory impact of the statutes is twofold: first, as a\nprocedural matter, a female member is required to demonstrate her spouse\xe2\x80\x99s dependency, while no\nsuch burden is imposed upon male members; and, second, as a substantive matter, a male member\nwho does not provide more than one-half of his wife\xe2\x80\x99s support receives benefits, while a similarly\nsituated female member is denied such benefits. Appellants therefore sought a permanent injunction\nagainst the continued enforcement of these statutes and an order directing the appellees to provide\nLieutenant Frontiero with the same housing and medical benefits that a similarly situated male\nmember would receive.\nAlthough the legislative history of these statutes sheds virtually no light on the purposes underlying\nthe differential treatment accorded male and female members, a majority of the three-judge District\nCourt surmised that Congress might reasonably have concluded that, since the husband in our society\nis generally the \xe2\x80\x9cbread-winner\xe2\x80\x9d in the family \xe2\x80\x93 and the wife typically the \xe2\x80\x9cdependent\xe2\x80\x9d partner \xe2\x80\x93\n\xe2\x80\x9cit would be more economical to require married female members claiming husbands to prove\nactual dependency than to extend the presumption of dependency to such members.\xe2\x80\x9d Indeed, given\nthe fact that approximately 99% of all members of the uniformed services are male, the District\nCourt speculated that such differential treatment might conceivably lead to a \xe2\x80\x9cconsiderable saving of\nadministrative expense and manpower.\xe2\x80\x9d\n\nII\nAt the outset, appellants contend that classifications based upon sex, like classifications based upon\nrace, alienage, and national origin, are inherently suspect and must therefore be subjected to close\njudicial scrutiny. We agree and, indeed, find at least implicit support for such an approach in our\nunanimous decision only last Term in Reed v. Reed (1971).\n* * * * In reaching this result {in Reed}, the Court implicitly rejected appellee\xe2\x80\x99s apparently rational\nexplanation of the statutory scheme, and concluded that, by ignoring the individual qualifications of\nparticular applicants, the challenged statute provided \xe2\x80\x9cdissimilar treatment for men and women who\nare . . . similarly situated.\xe2\x80\x9d The Court therefore held that, even though the State\xe2\x80\x99s interest in achieving\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 289\n\n\x0cadministrative efficiency \xe2\x80\x9cis not without some legitimacy,\xe2\x80\x9d \xe2\x80\x9c[t]o give a mandatory preference to\nmembers of either sex over members of the other, merely to accomplish the elimination of hearings on\nthe merits, is to make the very kind of arbitrary legislative choice forbidden by the [Constitution] . . . .\xe2\x80\x9d\nThis departure from \xe2\x80\x9ctraditional\xe2\x80\x9d rational-basis analysis with respect to sex-based classifications is\nclearly justified.\nThere can be no doubt that our Nation has had a long and unfortunate history of sex discrimination.\nTraditionally, such discrimination was rationalized by an attitude of \xe2\x80\x9cromantic paternalism\xe2\x80\x9d which, in\npractical effect, put women, not on a pedestal, but in a cage. Indeed, this paternalistic attitude became\nso firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this\nCourt was able to proclaim:\n\xe2\x80\x9cMan is, or should be, woman\xe2\x80\x99s protector and defender. The natural and proper timidity and\ndelicacy which belongs to the female sex evidently unfits it for many of the occupations of civil\nlife. The constitution of the family organization, which is founded in the divine ordinance, as\nwell as in the nature of things, indicates the domestic sphere as that which properly belongs\nto the domain and functions of womanhood. The harmony, not to say identity, of interests and\nviews which belong, or should belong, to the family institution is repugnant to the idea of a\nwoman adopting a distinct and independent career from that of her husband. . . .\n\xe2\x80\x9c. . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of\nwife and mother. This is the law of the Creator.\xe2\x80\x9d\nBradwell v. State, 16 Wall. 130, 141 (1873) (Bradley, J., concurring).\nAs a result of notions such as these, our statute books gradually became laden with gross, stereotyped\ndistinctions between the sexes and, indeed, throughout much of the 19th century the position of\nwomen in our society was, in many respects, comparable to that of blacks under the pre-Civil War\nslave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own\nnames, and married women traditionally were denied the legal capacity to hold or convey property or\nto serve as legal guardians of their own children. See generally L. Kanowitz, Women and the Law: The\nUnfinished Revolution 5-6 (1969); G. Myrdal, An American Dilemma 1073 (20th anniversary ed. 1962).\nAnd although blacks were guaranteed the right to vote in 1870, women were denied even that right \xe2\x80\x93\nwhich is itself \xe2\x80\x9cpreservative of other basic civil and political rights\xe2\x80\x9d \xe2\x80\x93 until adoption of the Nineteenth\nAmendment half a century later.\nIt is true, of course, that the position of women in America has improved markedly in recent decades.\nNevertheless, it can hardly be doubted that, in part because of the high visibility of the sex\ncharacteristic, women still face pervasive, although at times more subtle, discrimination in our\neducational institutions, in the job market and, perhaps most conspicuously, in the political arena.\nSee generally K. Amundsen, The Silenced Majority: Women and American Democracy (1971); The\nPresident\xe2\x80\x99s Task Force on Women\xe2\x80\x99s Rights and Responsibilities, A Matter of Simple Justice (1970).\nMoreover, since sex, like race and national origin, is an immutable characteristic determined solely\nby the accident of birth, the imposition of special disabilities upon the members of a particular sex\n290 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cbecause of their sex would seem to violate \xe2\x80\x9cthe basic concept of our system that legal burdens\nshould bear some relationship to individual responsibility . . . .\xe2\x80\x9d And what differentiates sex from such\nnonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect\ncriteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute\nto society. As a result, statutory distinctions between the sexes often have the effect of invidiously\nrelegating the entire class of females to inferior legal status without regard to the actual capabilities\nof its individual members.\nWe might also note that, over the past decade, Congress has itself manifested an increasing sensitivity\nto sex-based classifications. In Title VII of the Civil Rights Act of 1964, for example, Congress expressly\ndeclared that no employer, labor union, or other organization subject to the provisions of the Act\nshall discriminate against any individual on the basis of \xe2\x80\x9crace, color, religion, sex, or national origin.\xe2\x80\x9d\nSimilarly, the Equal Pay Act of 1963 provides that no employer covered by the Act \xe2\x80\x9cshall\ndiscriminate . . . between employees on the basis of sex.\xe2\x80\x9d And \xc2\xa7 1 of the Equal Rights Amendment,\npassed by Congress on March 22, 1972, and submitted to the legislatures of the States for ratification,\ndeclares that \xe2\x80\x9c[e]quality of rights under the law shall not be denied or abridged by the United States\nor by any State on account of sex.\xe2\x80\x9d Thus, Congress itself has concluded that classifications based upon\nsex are inherently invidious, and this conclusion of a coequal branch of Government is not without\nsignificance to the question presently under consideration.\nWith these considerations in mind, we can only conclude that classifications based upon sex, like\nclassifications based upon race, alienage, or national origin, are inherently suspect, and must\ntherefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter\nstandard of review, it is clear that the statutory scheme now before us is constitutionally invalid.\n\nIII\nThe sole basis of the classification established in the challenged statutes is the sex of the individuals\ninvolved. Thus, * * * * a female member of the uniformed services seeking to obtain housing and\nmedical benefits for her spouse must prove his dependency in fact, whereas no such burden is\nimposed upon male members. In addition, the statutes operate so as to deny benefits to a female\nmember, such as appellant Sharron Frontiero, who provides less than one-half of her spouse\xe2\x80\x99s support,\nwhile at the same time granting such benefits to a male member who likewise provides less than\none-half of his spouse\xe2\x80\x99s support. Thus, to this extent at least, it may fairly be said that these statutes\ncommand \xe2\x80\x9cdissimilar treatment for men and women who are . . . similarly situated.\xe2\x80\x9d Reed v. Reed.\nMoreover, the Government concedes that the differential treatment accorded men and women under\nthese statutes serves no purpose other than mere \xe2\x80\x9cadministrative convenience.\xe2\x80\x9d In essence, the\nGovernment maintains that, as an empirical matter, wives in our society frequently are dependent\nupon their husbands, while husbands rarely are dependent upon their wives. Thus, the Government\nargues that Congress might reasonably have concluded that it would be both cheaper and easier\nsimply conclusively to presume that wives of male members are financially dependent upon their\nhusbands, while burdening female members with the task of establishing dependency in fact.\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 291\n\n\x0cThe Government offers no concrete evidence, however, tending to support its view that such\ndifferential treatment in fact saves the Government any money. In order to satisfy the demands of\nstrict judicial scrutiny, the Government must demonstrate, for example, that it is actually cheaper\nto grant increased benefits with respect to all male members, than it is to determine which male\nmembers are in fact entitled to such benefits and to grant increased benefits only to those members\nwhose wives actually meet the dependency requirement. Here, however, there is substantial evidence\nthat, if put to the test, many of the wives of male members would fail to qualify for benefits. And in\nlight of the fact that the dependency determination with respect to the husbands of female members\nis presently made solely on the basis of affidavits, rather than through the more costly hearing\nprocess, the Government\xe2\x80\x99s explanation of the statutory scheme is, to say the least, questionable.\nIn any case, our prior decisions make clear that, although efficacious administration of governmental\nprograms is not without some importance, \xe2\x80\x9cthe Constitution recognizes higher values than speed\nand efficiency.\xe2\x80\x9d And when we enter the realm of \xe2\x80\x9cstrict judicial scrutiny,\xe2\x80\x9d there can be no doubt\nthat \xe2\x80\x9cadministrative convenience\xe2\x80\x9d is not a shibboleth, the mere recitation of which dictates\nconstitutionality. On the contrary, any statutory scheme which draws a sharp line between the sexes,\nsolely for the purpose of achieving administrative convenience, necessarily commands \xe2\x80\x9cdissimilar\ntreatment for men and women who are . . . similarly situated,\xe2\x80\x9d and therefore involves the \xe2\x80\x9cvery kind of\narbitrary legislative choice forbidden by the [Constitution] . . . .\xe2\x80\x9d Reed v. Reed. We therefore conclude\nthat, by according differential treatment to male and female members of the uniformed services\nfor the sole purpose of achieving administrative convenience, the challenged statutes violate the\nDue Process Clause of the Fifth Amendment insofar as they require a female member to prove the\ndependency of her husband.\nReversed.\nMR. JUSTICE POWELL, WITH WHOM THE CHIEF JUSTICE {BURGER} AND MR. JUSTICE BLACKMUN JOIN, CONCURRING IN\nTHE JUDGMENT.\nI agree that the challenged statutes constitute an unconstitutional discrimination against\nservicewomen in violation of the Due Process Clause of the Fifth Amendment, but I cannot join\nthe opinion of Mr. Justice Brennan, which would hold that all classifications based upon sex, \xe2\x80\x9clike\nclassifications based upon race, alienage, and national origin,\xe2\x80\x9d are \xe2\x80\x9cinherently suspect, and must\ntherefore be subjected to close judicial scrutiny.\xe2\x80\x9d It is unnecessary for the Court in this case to\ncharacterize sex as a suspect classification, with all of the far-reaching implications of such a holding.\nReed v. Reed (1971), which abundantly supports our decision today, did not add sex to the narrowly\nlimited group of classifications which are inherently suspect. In my view, we can and should decide\nthis case on the authority of Reed, and reserve for the future any expansion of its rationale.\nThere is another, and I find compelling, reason for deferring a general categorizing of sex\nclassifications as invoking the strictest test of judicial scrutiny. The Equal Rights Amendment, which\nif adopted will resolve the substance of this precise question, has been approved by the Congress and\nsubmitted for ratification by the States. If this Amendment is duly adopted, it will represent the will\nof the people accomplished in the manner prescribed by the Constitution. By acting prematurely and\n292 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cunnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when\nstate legislatures, functioning within the traditional democratic process, are debating the proposed\nAmendment. It seems to me that this reaching out to preempt by judicial action a major political\ndecision which is currently in process of resolution does not reflect appropriate respect for duly\nprescribed legislative processes.\nThere are times when this Court, under our system, cannot avoid a constitutional decision on issues\nwhich normally should be resolved by the elected representatives of the people. But democratic\ninstitutions are weakened, and confidence in the restraint of the Court is impaired, when we appear\nunnecessarily to decide sensitive issues of broad social and political importance at the very time they\nare under consideration within the prescribed constitutional processes.\nMR. JUSTICE STEWART CONCURS IN THE JUDGMENT, AGREEING THAT THE STATUTES BEFORE US WORK AN INVIDIOUS\nDISCRIMINATION IN VIOLATION OF THE CONSTITUTION. REED V. REED.\nMR. JUSTICE REHNQUIST DISSENTS FOR THE REASONS STATED BY JUDGE RIVES IN HIS OPINION FOR THE DISTRICT\nCOURT, FRONTIERO V. LAIRD, 341 F. SUPP. 201 (1972).\n\nCraig v. Boren\n429 U.S. 190 (1976)\nBRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH WHITE, MARSHALL, POWELL, AND STEVENS, JJ., JOINED,\nAND IN ALL BUT PART II-D OF WHICH BLACKMUN, J., JOINED. POWELL, J. AND STEVENS, J. FILED CONCURRING OPINIONS.\nBLACKMUN, J., FILED A STATEMENT CONCURRING IN PART. STEWART, J., FILED AN OPINION CONCURRING IN THE\nJUDGMENT. BURGER, C. J. AND REHNQUIST, J. FILED DISSENTING OPINIONS.\nMR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT.\nThe interaction of two sections of an Oklahoma statute, Okla. Stat., Tit. 37, 241 and 245 (1958 and\nSupp. 1976), prohibits the sale of \xe2\x80\x9cnonintoxicating\xe2\x80\x9d 3.2% beer to males under the age of 21 and to\nfemales under the age of 18. The question to be decided is whether such a gender-based differential\nconstitutes a denial to males 18-20 years of age of the equal protection of the laws in violation of the\nFourteenth Amendment.\nThis action was brought in the District Court for the Western District of Oklahoma on December\n20, 1972, by appellant Craig, a male then between 18 and 21 years of age, and by appellant Whitener,\na licensed vendor of 3.2% beer. The complaint sought declaratory and injunctive relief against\nenforcement of the gender-based differential on the ground that it constituted invidious\ndiscrimination against males 18-20 years of age. A three-judge court convened sustained the\nconstitutionality of the statutory differential and dismissed the action. We noted probable jurisdiction\nof appellants\xe2\x80\x99 appeal. We reverse.\n\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 293\n\n\x0cI\nWe first address a preliminary question of standing * * * * {omitted; the Court found the claims could\nproceed.}\n\nII\nA\nBefore 1972, Oklahoma defined the commencement of civil majority at age 18 for females and age 21\nfor males. In contrast, females were held criminally responsible as adults at age 18 and males at age\n16. After the Court of Appeals for the Tenth Circuit held in 1972, on the authority of Reed v. Reed (1971),\nthat the age distinction was unconstitutional for purposes of establishing criminal responsibility as\nadults, the Oklahoma Legislature fixed age 18 as applicable to both males and females. In 1972, 18 also\nwas established as the age of majority for males and females in civil matters, except that 241 and 245\nof the 3.2% beer statute were simultaneously codified to create an exception to the gender-free rule.\nAnalysis may appropriately begin with the reminder that Reed emphasized that statutory\nclassifications that distinguish between males and females are \xe2\x80\x9csubject to scrutiny under the Equal\nProtection Clause.\xe2\x80\x9d To withstand constitutional challenge, previous cases establish that classifications\nby gender must serve important governmental objectives and must be substantially related to\nachievement of those objectives. {note: there is no citation here}. Thus, in Reed, the objectives of\n\xe2\x80\x9creducing the workload on probate courts,\xe2\x80\x9d and \xe2\x80\x9cavoiding intrafamily controversy,\xe2\x80\x9d were deemed\nof insufficient importance to sustain use of an overt gender criterion in the appointment of\nadministrators of intestate decedents\xe2\x80\x99 estates. Decisions following Reed similarly have rejected\nadministrative ease and convenience as sufficiently important objectives to justify gender-based\nclassifications. See, e. g., Stanley v. Illinois (1972); Frontiero v. Richardson (1973); cf. Schlesinger v.\nBallard, (1975). And only two Terms ago, Stanton v. Stanton (1975), expressly stating that Reed v. Reed\nwas \xe2\x80\x9ccontrolling,\xe2\x80\x9d held that Reed required invalidation of a Utah differential age-of-majority statute,\nnotwithstanding the statute\xe2\x80\x99s coincidence with and furtherance of the State\xe2\x80\x99s purpose of fostering\n\xe2\x80\x9cold notions\xe2\x80\x9d of role typing and preparing boys for their expected performance in the economic and\npolitical worlds.\nReed v. Reed has also provided the underpinning for decisions that have invalidated statutes employing\ngender as an inaccurate proxy for other, more germane bases of classification. Hence, \xe2\x80\x9carchaic and\noverbroad\xe2\x80\x9d generalizations, Schlesinger v. Ballard, concerning the financial position of servicewomen,\nFrontiero v. Richardson, and working women, Weinberger v. Wiesenfeld (1975), could not justify use of\na gender line in determining eligibility for certain governmental entitlements. Similarly, increasingly\noutdated misconceptions concerning the role of females in the home rather than in the \xe2\x80\x9cmarketplace\nand world of ideas\xe2\x80\x9d were rejected as loose-fitting characterizations incapable of supporting state\nstatutory schemes that were premised upon their accuracy. Stanton v. Stanton; Taylor v. Louisiana\n(1975). In light of the weak congruence between gender and the characteristic or trait that gender\n294 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cpurported to represent, it was necessary that the legislatures choose either to realign their\nsubstantive laws in a gender-neutral fashion, or to adopt procedures for identifying those instances\nwhere the sex-centered generalization actually comported with fact.\nIn this case, too, \xe2\x80\x9cReed, we feel, is controlling . . .,\xe2\x80\x9d Stanton v. Stanton. We turn then to the question\nwhether, under Reed, the difference between males and females with respect to the purchase of 3.2%\nbeer warrants the differential in age drawn by the Oklahoma statute. We conclude that it does not.\n\nB\nThe District Court recognized that Reed v. Reed was controlling. In applying the teachings of that case,\nthe court found the requisite important governmental objective in the traffic-safety goal proffered\nby the Oklahoma Attorney General. It then concluded that the statistics introduced by the appellees\nestablished that the gender-based distinction was substantially related to achievement of that goal.\n\nC\nWe accept for purposes of discussion the District Court\xe2\x80\x99s identification of the objective underlying\n\xc2\xa7 241 and \xc2\xa7 245 as the enhancement of traffic safety. Clearly, the protection of public health and safety\nrepresents an important function of state and local governments. However, appellees\xe2\x80\x99 statistics in our\nview cannot support the conclusion that the gender-based distinction closely serves to achieve that\nobjective and therefore the distinction cannot under Reed withstand equal protection challenge.\nThe appellees introduced a variety of statistical surveys. First, an analysis of arrest statistics for 1973\ndemonstrated that 18-20-year-old male arrests for \xe2\x80\x9cdriving under the influence\xe2\x80\x9d and \xe2\x80\x9cdrunkenness\xe2\x80\x9d\nsubstantially exceeded female arrests for that same age period. Similarly, youths aged 17-21 were found\nto be overrepresented among those killed or injured in traffic accidents, with males again numerically\nexceeding females in this regard. Third, a random roadside survey in Oklahoma City revealed that\nyoung males were more inclined to drive and drink beer than were their female counterparts. Fourth,\nFederal Bureau of Investigation nationwide statistics exhibited a notable increase in arrests for\n\xe2\x80\x9cdriving under the influence.\xe2\x80\x9d Finally, statistical evidence gathered in other jurisdictions, particularly\nMinnesota and Michigan, was offered to corroborate Oklahoma\xe2\x80\x99s experience by indicating the\npervasiveness of youthful participation in motor vehicle accidents following the imbibing of alcohol.\nConceding that \xe2\x80\x9cthe case is not free from doubt,\xe2\x80\x9d the District Court nonetheless concluded that\nthis statistical showing substantiated \xe2\x80\x9ca rational basis for the legislative judgment underlying the\nchallenged classification.\xe2\x80\x9d\nEven were this statistical evidence accepted as accurate, it nevertheless offers only a weak answer\nto the equal protection question presented here. The most focused and relevant of the statistical\nsurveys, arrests of 18-20-year-olds for alcohol-related driving offenses, exemplifies the ultimate\nunpersuasiveness of this evidentiary record. Viewed in terms of the correlation between sex and the\nactual activity that Oklahoma seeks to regulate \xe2\x80\x93 driving while under the influence of alcohol \xe2\x80\x93 the\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 295\n\n\x0cstatistics broadly establish that .18% of females and 2% of males in that age group were arrested for\nthat offense. While such a disparity is not trivial in a statistical sense, it hardly can form the basis for\nemployment of a gender line as a classifying device. Certainly if maleness is to serve as a proxy for\ndrinking and driving, a correlation of 2% must be considered an unduly tenuous \xe2\x80\x9cfit.\xe2\x80\x9d Indeed, prior\ncases have consistently rejected the use of sex as a decisionmaking factor even though the statutes in\nquestion certainly rested on far more predictive empirical relationships than this.\nMoreover, the statistics exhibit a variety of other shortcomings that seriously impugn their value\nto equal protection analysis. Setting aside the obvious methodological problems, the surveys do not\nadequately justify the salient features of Oklahoma\xe2\x80\x99s gender-based traffic-safety law. None purports\nto measure the use and dangerousness of 3.2% beer as opposed to alcohol generally, a detail that is\nof particular importance since, in light of its low alcohol lever, Oklahoma apparently considers the\n3.2% beverage to be \xe2\x80\x9cnonintoxicating.\xe2\x80\x9d Moreover, many of the studies, while graphically documenting\nthe unfortunate increase in driving while under the influence of alcohol, make no effort to relate\ntheir findings to age-sex differential as involved here. Indeed, the only survey that explicitly centered\nits attention upon young drivers and their use of beer \xe2\x80\x93 albeit apparently not of the diluted 3.2%\nvariety \xe2\x80\x93 reached results that hardly can be viewed as impressive in justifying either a gender or age\nclassification.\nThere is no reason to belabor this line of analysis. It is unrealistic to expect either members of the\njudiciary or state officials to be well versed in the rigors of experimental or statistical technique.\nBut this merely illustrates that proving broad sociological propositions by statistics is a dubious\nbusiness, and one that inevitably is in tension with the normative philosophy that underlies the Equal\nProtection Clause. Suffice to say that the showing offered by the appellees does not satisfy us that\nsex represents a legitimate, accurate proxy for the regulation of drinking and driving. In fact, when it\nis further recognized that Oklahoma\xe2\x80\x99s statute prohibits only the selling of 3.2% beer to young males\nand not their drinking the beverage once acquired (even after purchase by their 18-20-year-old female\ncompanions), the relationship between gender and traffic safety becomes far too tenuous to satisfy\nReed\xe2\x80\x99s requirement that the gender-based difference be substantially related to achievement of the\nstatutory objective.\nWe hold, therefore, that under Reed, Oklahoma\xe2\x80\x99s 3.2% beer statute invidiously discriminates against\nmales 18-20 years of age.\n\nD\nAppellees argue, however, that 241 and 245 enforce state policies concerning the sale and distribution\nof alcohol and by force of the Twenty-first Amendment should therefore be held to withstand the\nequal protection challenge. * * * *\nIn sum, the principles embodied in the Equal Protection Clause are not to be rendered inapplicable by\nstatistically measured but loose-fitting generalities concerning the drinking tendencies of aggregate\ngroups. We thus hold that the operation of the Twenty-first Amendment does not alter the application\nof equal protection standards that otherwise govern this case.\n296 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cWe conclude that the gender-based differential contained in Okla. Stat., Tit. 37, 245 constitutes a\ndenial of the equal protection of the laws to males aged 18-20and reverse the judgment of the District\nCourt.\nIt is so ordered.\nMR. JUSTICE STEVENS, CONCURRING.\nThere is only one Equal Protection Clause. It requires every State to govern impartially. It does not\ndirect the courts to apply one standard of review in some cases and a different standard in other\ncases. Whatever criticism may be leveled at a judicial opinion implying that there are at least three\nsuch standards applies with the same force to a double standard.\nI am inclined to believe that what has become known as the two-tiered analysis of equal protection\nclaims does not describe a completely logical method of deciding cases, but rather is a method\nthe Court has employed to explain decisions that actually apply a single standard in a reasonably\nconsistent fashion. I also suspect that a careful explanation of the reasons motivating particular\ndecisions may contribute more to an identification of that standard than an attempt to articulate it in\nall-encompassing terms. It may therefore be appropriate for me to state the principal reasons which\npersuaded me to join the Court\xe2\x80\x99s opinion.\nIn this case, the classification is not as obnoxious as some the Court has condemned, nor as\ninoffensive as some the Court has accepted. It is objectionable because it is based on an accident of\nbirth, because it is a mere remnant of the now almost universally rejected tradition of discriminating\nagainst males in this age bracket, and because, to the extent it reflects any physical difference\nbetween males and females, it is actually perverse. The question then is whether the traffic safety\njustification put forward by the State is sufficient to make an otherwise offensive classification\nacceptable.\nThe classification is not totally irrational. For the evidence does indicate that there are more males\nthan females in this age bracket who drive and also more who drink. Nevertheless, there are several\nreasons why I regard the justification as unacceptable. It is difficult to believe that the statute was\nactually intended to cope with the problem of traffic safety, since it has only a minimal effect on\naccess to a not very intoxicating beverage and does not prohibit its consumption. Moreover, the\nempirical data submitted by the State accentuate the unfairness of treating all 18-20-year-old males\nas inferior to their female counterparts. The legislation imposes a restraint on 100% of the males in\nthe class allegedly because about 2% of them have probably violated one or more laws relating to the\nconsumption of alcoholic beverages. It is unlikely that this law will have a significant deterrent effect\neither on that 2% or on the law-abiding 98%. But even assuming some such slight benefit, it does not\nseem to me that an insult to all of the young men of the State can be justified by visiting the sins of the\n2% on the 98%.\n\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 297\n\n\x0cMR. JUSTICE REHNQUIST, DISSENTING.\nThe Court\xe2\x80\x99s disposition of this case is objectionable on two grounds. First is its conclusion that\nmen challenging a gender-based statute which treats them less favorably than women may invoke\na more stringent standard of judicial review than pertains to most other types of classifications.\nSecond is the Court\xe2\x80\x99s enunciation of this standard, without citation to any source, as being that\n\xe2\x80\x9cclassifications by gender must serve important governmental objectives and must be substantially\nrelated to achievement of those objectives.\xe2\x80\x9d (emphasis added). The only redeeming feature of the\nCourt\xe2\x80\x99s opinion, to my mind, is that it apparently signals a retreat by those who joined the plurality\nopinion in Frontiero v. Richardson (1973), from their view that sex is a \xe2\x80\x9csuspect\xe2\x80\x9d classification for\npurposes of equal protection analysis. I think the Oklahoma statute challenged here need pass only the\n\xe2\x80\x9crational basis\xe2\x80\x9d equal protection analysis expounded in cases such as * * * * Williamson v. Lee Optical\nCo., (1955), and I believe that it is constitutional under that analysis.\n\nI\nIn Frontiero v. Richardson, the opinion for the plurality sets forth the reasons of four Justices for\nconcluding that sex should be regarded as a suspect classification for purposes of equal protection\nanalysis. * * * *\nSubsequent to Frontiero, the Court has declined to hold that sex is a suspect class, Stanton v. Stanton\n(1975) and no such holding is imported by the Court\xe2\x80\x99s resolution of this case. However, the Court\xe2\x80\x99s\napplication here of an elevated or \xe2\x80\x9cintermediate\xe2\x80\x9d level scrutiny, like that invoked in cases dealing with\ndiscrimination against females, raises the question of why the statute here should be treated any\ndifferently from countless legislative classifications unrelated to sex which have been upheld under a\nminimum rationality standard. Dandridge v. Williams (1970); Williamson v. Lee Optical Co.\nMost obviously unavailable to support any kind of special scrutiny in this case, is a history or pattern\nof past discrimination, such as was relied on by the plurality in Frontiero to support its invocation of\nstrict scrutiny. There is no suggestion in the Court\xe2\x80\x99s opinion that males in this age group are in any\nway peculiarly disadvantaged, subject to systematic discriminatory treatment, or otherwise in need of\nspecial solicitude from the courts.\nThe Court does not discuss the nature of the right involved, and there is no reason to believe\nthat it sees the purchase of 3.2% beer as implicating any important interest, let alone one that is\n\xe2\x80\x9cfundamental\xe2\x80\x9d in the constitutional sense of invoking strict scrutiny. Indeed, the Court\xe2\x80\x99s accurate\nobservation that the statute affects the selling but not the drinking of 3.2% beer, further emphasizes\nthe limited effect that it has on even those persons in the age group involved. There is, in sum,\nnothing about the statutory classification involved here to suggest that it affects an interest, or works\nagainst a group, which can claim under the Equal Protection Clause that it is entitled to special judicial\nprotection.\nIt is true that a number of our opinions contain broadly phrased dicta implying that the same test\nshould be applied to all classifications based on sex, whether affecting females or males. However,\n298 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cbefore today, no decision of this Court has applied an elevated level of scrutiny to invalidate a\nstatutory discrimination harmful to males, except where the statute impaired an important personal\ninterest protected by the Constitution. There being no such interest here, and there being no\nplausible argument that this is a discrimination against females, the Court\xe2\x80\x99s reliance on our previous\nsex-discrimination cases is ill-founded. It treats gender classification as a talisman which \xe2\x80\x93 without\nregard to the rights involved or the persons affected \xe2\x80\x93 calls into effect a heavier burden of judicial\nreview.\nThe Court\xe2\x80\x99s conclusion that a law which treats males less favorably than females \xe2\x80\x9cmust serve\nimportant governmental objectives and must be substantially related to achievement of those\nobjectives\xe2\x80\x9d apparently comes out of thin air. The Equal Protection Clause contains no such language,\nand none of our previous cases adopt that standard. I would think we have had enough difficulty\nwith the two standards of review which our cases have recognized \xe2\x80\x93 the norm of \xe2\x80\x9crational basis,\xe2\x80\x9d\nand the \xe2\x80\x9ccompelling state interest\xe2\x80\x9d required where a \xe2\x80\x9csuspect classification\xe2\x80\x9d is involved \xe2\x80\x93 so as to\ncounsel weightily against the insertion of still another \xe2\x80\x9cstandard\xe2\x80\x9d between those two. How is this\nCourt to divine what objectives are important? How is it to determine whether a particular law is\n\xe2\x80\x9csubstantially\xe2\x80\x9d related to the achievement of such objective, rather than related in some other way to\nits achievement? Both of the phrases used are so diaphanous and elastic as to invite subjective judicial\npreferences or prejudices relating to particular types of legislation, masquerading as judgments\nwhether such legislation is directed at \xe2\x80\x9cimportant\xe2\x80\x9d objectives or, whether the relationship to those\nobjectives is \xe2\x80\x9csubstantial\xe2\x80\x9d enough.\nI would have thought that if this Court were to leave anything to decision by the popularly elected\nbranches of the Government, where no constitutional claim other than that of equal protection is\ninvoked, it would be the decision as to what governmental objectives to be achieved by law are\n\xe2\x80\x9cimportant,\xe2\x80\x9d and which are not. As for the second part of the Court\xe2\x80\x99s new test, the Judicial Branch\nis probably in no worse position than the Legislative or Executive Branches to determine if there is\nany rational relationship between a classification and the purpose which it might be thought to serve.\nBut the introduction of the adverb \xe2\x80\x9csubstantially\xe2\x80\x9d requires courts to make subjective judgments as to\noperational effects, for which neither their expertise nor their access to data fits them. And even if we\nmanage to avoid both confusion and the mirroring of our own preferences in the development of this\nnew doctrine, the thousands of judges in other courts who must interpret the Equal Protection Clause\nmay not be so fortunate.\n\nII\nThe applicable rational-basis test is one which \xe2\x80\x9cpermits the States a wide scope of discretion in\nenacting laws which affect some groups of citizens differently than others. * * * *\xe2\x80\x9d\nOur decisions indicate that application of the Equal Protection Clause in a context not justifying an\nelevated level of scrutiny does not demand \xe2\x80\x9cmathematical nicety\xe2\x80\x9d or the elimination of all inequality.\nThose cases recognize that the practical problems of government may require rough accommodations\nof interests, and hold that such accommodations should be respected unless no reasonable basis can\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 299\n\n\x0cbe found to support them. Dandridge v. Williams. Whether the same ends might have been better or\nmore precisely served by a different approach is no part of the judicial inquiry under the traditional\nminimum rationality approach. * * * *\nThe Court\xe2\x80\x99s criticism of the statistics relied on by the District Court conveys the impression that a\nlegislature in enacting a new law is to be subjected to the judicial equivalent of a doctoral examination\nin statistics. Legislatures are not held to any rules of evidence such as those which may govern\ncourts or other administrative bodies, and are entitled to draw factual conclusions on the basis of\nthe determination of probable cause which an arrest by a police officer normally represents. In this\nsituation, they could reasonably infer that the incidence of drunk driving is a good deal higher than\nthe incidence of arrest.\nAnd while, as the Court observes, relying on a report to a Presidential Commission which it cites in a\nfootnote, such statistics may be distorted as a result of stereotyping, the legislature is not required to\nprove before a court that its statistics are perfect. In any event, if stereotypes are as pervasive as the\nCourt suggests, they may in turn influence the conduct of the men and women in question, and cause\nthe young men to conform to the wild and reckless image which is their stereotype. * * * *\nThe Oklahoma Legislature could have believed that 18-20-year-old males drive substantially more,\nand tend more often to be intoxicated than their female counterparts; that they prefer beer and\nadmit to drinking and driving at a higher rate than females; and that they suffer traffic injuries out\nof proportion to the part they make up of the population. Under the appropriate rational-basis test\nfor equal protection, it is neither irrational nor arbitrary to bar them from making purchases of 3.2%\nbeer, which purchases might in many cases be made by a young man who immediately returns to his\nvehicle with the beverage in his possession. The record does not give any good indication of the true\nproportion of males in the age group who drink and drive (except that it is no doubt greater than the\n2% who are arrested), but whatever it may be I cannot see that the mere purchase right involved could\nconceivably raise a due process question. There being no violation of either equal protection or due\nprocess, the statute should accordingly be upheld.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=37#h5p-76\n\n300 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cUnited States v. Virginia (VMI)\n518 U.S. 515 (1996)\nGINSBURG, J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEVENS, O\xe2\x80\x99CONNOR, KENNEDY, SOUTER, AND\nBREYER, JJ., JOINED. REHNQUIST, C. J., FILED AN OPINION CONCURRING IN THE JUDGMENT. SCALIA, J., FILED A\nDISSENTING OPINION. THOMAS, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE.\nJUSTICE GINSBURG DELIVERED THE OPINION OF THE COURT.\nVirginia\xe2\x80\x99s public institutions of higher learning include an incomparable military college, Virginia\nMilitary Institute (VMI). The United States maintains that the Constitution\xe2\x80\x99s equal protection\nguarantee precludes Virginia from reserving exclusively to men the unique educational opportunities\nVMI affords. We agree.\n\nI\nFounded in 1839, VMI is today the sole single-sex school among Virginia\xe2\x80\x99s 15 public institutions of\nhigher learning. VMI\xe2\x80\x99s distinctive mission is to produce \xe2\x80\x9ccitizen-soldiers,\xe2\x80\x9d men prepared for leadership\nin civilian life and in military service. VMI pursues this mission through pervasive training of a\nkind not available anywhere else in Virginia. Assigning prime place to character development, VMI\nuses an \xe2\x80\x9cadversative method\xe2\x80\x9d modeled on English public schools and once characteristic of military\ninstruction. VMI constantly endeavors to instill physical and mental discipline in its cadets and impart\nto them a strong moral code. The school\xe2\x80\x99s graduates leave VMI with heightened comprehension of\ntheir capacity to deal with duress and stress, and a large sense of accomplishment for completing the\nhazardous course.\nVMI has notably succeeded in its mission to produce leaders; among its alumni are military generals,\nMembers of Congress, and business executives. The school\xe2\x80\x99s alumni overwhelmingly perceive that\ntheir VMI training helped them to realize their personal goals. VMI\xe2\x80\x99s endowment reflects the loyalty\nof its graduates; VMI has the largest per-student endowment of all undergraduate institutions in the\nNation.\nNeither the goal of producing citizen-soldiers nor VMI\xe2\x80\x99s implementing methodology is inherently\nunsuitable to women. And the school\xe2\x80\x99s impressive record in producing leaders has made admission\ndesirable to some women. Nevertheless, Virginia has elected to preserve exclusively for men the\nadvantages and opportunities a VMI education affords.\n\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 301\n\n\x0cII\nA\nFrom its establishment in 1839 as one of the Nation\xe2\x80\x99s first state military colleges, VMI has remained\nfinancially supported by Virginia and \xe2\x80\x9csubject to the control of the [Virginia] General Assembly,\xe2\x80\x9d First\nsouthern college to teach engineering and industrial chemistry, VMI once provided teachers for the\nState\xe2\x80\x99s schools. Civil War strife threatened the school\xe2\x80\x99s vitality, but a resourceful superintendent\nregained legislative support by highlighting \xe2\x80\x9cVMI\xe2\x80\x99s great potential[,] through its technical know-how,\xe2\x80\x9d\nto advance Virginia\xe2\x80\x99s postwar recovery.\nVMI today enrolls about 1,300 men as cadets. Its academic offerings in the liberal arts, sciences, and\nengineering are also available at other public colleges and universities in Virginia. But VMI\xe2\x80\x99s mission is\nspecial. It is the mission of the school\n\xe2\x80\x9cto produce educated and honorable men, prepared for the varied work of civil life, imbued\nwith love of learning, confident in the functions and attitudes of leadership, possessing a high\nsense of public service, advocates of the American democracy and free enterprise system, and\nready as citizen-soldiers to defend their country in time of national peril.\xe2\x80\x9d\nIn contrast to the federal service academies, institutions maintained \xe2\x80\x9cto prepare cadets for career\nservice in the armed forces,\xe2\x80\x9d VMI\xe2\x80\x99s program \xe2\x80\x9cis directed at preparation for both military and civilian\nlife\xe2\x80\x9d; \xe2\x80\x9c[o]nly about 15% of VMI cadets enter career military service.\xe2\x80\x9d\nVMI produces its \xe2\x80\x9ccitizen-soldiers\xe2\x80\x9d through \xe2\x80\x9can adversative, or doubting, model of education\xe2\x80\x9d which\nfeatures \xe2\x80\x9c[p]hysical rigor, mental stress, absolute equality of treatment, absence of privacy, minute\nregulation of behavior, and indoctrination in desirable values.\xe2\x80\x9d As one Commandant of Cadets\ndescribed it, the adversative method \xe2\x80\x9cdissects the young student,\xe2\x80\x9d and makes him aware of his \xe2\x80\x9climits\nand capabilities,\xe2\x80\x9d so that he knows \xe2\x80\x9chow far he can go with his anger, . . . how much he can take under\nstress, . . . exactly what he can do when he is physically exhausted.\xe2\x80\x9d\nVMI cadets live in spartan barracks where surveillance is constant and privacy nonexistent; they\nwear uniforms, eat together in the mess hall, and regularly participate in drills. Entering students\nare incessantly exposed to the rat line, \xe2\x80\x9can extreme form of the adversative model,\xe2\x80\x9d comparable in\nintensity to Marine Corps boot camp. Tormenting and punishing, the rat line bonds new cadets\nto their fellow sufferers and, when they have completed the 7-month experience, to their former\ntormentors.\nVMI\xe2\x80\x99s \xe2\x80\x9cadversative model\xe2\x80\x9d is further characterized by a hierarchical \xe2\x80\x9cclass system\xe2\x80\x9d of privileges and\nresponsibilities, a \xe2\x80\x9cdyke system\xe2\x80\x9d for assigning a senior class mentor to each entering class \xe2\x80\x9crat,\xe2\x80\x9d and\na stringently enforced \xe2\x80\x9chonor code,\xe2\x80\x9d which prescribes that a cadet \xe2\x80\x9c\xe2\x80\x98does not lie, cheat, steal nor\ntolerate those who do.\xe2\x80\x99\xe2\x80\x9d\nVMI attracts some applicants because of its reputation as an extraordinarily challenging military\n\n302 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cschool, and \xe2\x80\x9cbecause its alumni are exceptionally close to the school.\xe2\x80\x9d \xe2\x80\x9c[W]omen have no opportunity\nanywhere to gain the benefits of [the system of education at VMI].\xe2\x80\x9d\n\nB\nIn 1990, prompted by a complaint filed with the Attorney General by a female high-school student\nseeking admission to VMI, the United States sued the Commonwealth of Virginia and VMI, alleging\nthat VMI\xe2\x80\x99s exclusively male admission policy violated the Equal Protection Clause of the Fourteenth\nAmendment. Trial of the action consumed six days and involved an array of expert witnesses on each\nside.\nIn the two years preceding the lawsuit, the District Court noted, VMI had received inquiries from 347\nwomen, but had responded to none of them. \xe2\x80\x9c[S]ome women, at least,\xe2\x80\x9d the court said, \xe2\x80\x9cwould want to\nattend the school if they had the opportunity.\xe2\x80\x9d The court further recognized that, with recruitment,\nVMI could \xe2\x80\x9cachieve at least 10% female enrollment\xe2\x80\x9d-\xe2\x80\x9ca sufficient \xe2\x80\x98critical mass\xe2\x80\x99 to provide the female\ncadets with a positive educational experience.\xe2\x80\x9d And it was also established that \xe2\x80\x9csome women are\ncapable of all of the individual activities required of VMI cadets.\xe2\x80\x9d In addition, experts agreed that if\nVMI admitted women, \xe2\x80\x9cthe VMI ROTC experience would become a better training program from the\nperspective of the armed forces, because it would provide training in dealing with a mixed-gender\narmy.\xe2\x80\x9d\nThe District Court ruled in favor of VMI, however, and rejected the equal protection challenge pressed\nby the United States. That court correctly recognized that Mississippi Univ. for Women v. Hogan (1982),\nwas the closest guide. There, this Court underscored that a party seeking to uphold government\naction based on sex must establish an \xe2\x80\x9cexceedingly persuasive justification\xe2\x80\x9d for the classification.\nMississippi Univ. for Women. To succeed, the defender of the challenged action must show \xe2\x80\x9cat least\nthat the classification serves important governmental objectives and that the discriminatory means\nemployed are substantially related to the achievement of those objectives.\xe2\x80\x9d\nThe District Court reasoned that education in \xe2\x80\x9ca single-gender environment, be it male or female,\xe2\x80\x9d\nyields substantial benefits. VMI\xe2\x80\x99s school for men brought diversity to an otherwise coeducational\nVirginia system, and that diversity was \xe2\x80\x9cenhanced by VMI\xe2\x80\x99s unique method of instruction.\xe2\x80\x9d If singlegender education for males ranks as an important governmental objective, it becomes obvious, the\nDistrict Court concluded, that the only means of achieving the objective \xe2\x80\x9cis to exclude women from\nthe all-male institution-VMI.\xe2\x80\x9d\n* * * * The Court of Appeals for the Fourth Circuit disagreed and vacated the District Court\xe2\x80\x99s\njudgment. The appellate court held: \xe2\x80\x9cThe Commonwealth of Virginia has not . . . advanced any state\npolicy by which it can justify its determination, under an announced policy of diversity, to afford VMI\xe2\x80\x99s\nunique type of program to men and not to women.\xe2\x80\x9d\nThe appeals court greeted with skepticism Virginia\xe2\x80\x99s assertion that it offers single-sex education at\nVMI as a facet of the State\xe2\x80\x99s overarching and undisputed policy to advance \xe2\x80\x9cautonomy and diversity.\xe2\x80\x9d\nThe court underscored Virginia\xe2\x80\x99s nondiscrimination commitment: \xe2\x80\x9c\xe2\x80\x98[I]t is extremely important that\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 303\n\n\x0c[colleges and universities] deal with faculty, staff, and students without regard to sex, race, or\nethnic origin.\xe2\x80\x99\xe2\x80\x9d * * * * The parties agreed that \xe2\x80\x9csome women can meet the physical standards now\nimposed on men,\xe2\x80\x9d and the court was satisfied that \xe2\x80\x9cneither the goal of producing citizen soldiers\nnor VMI\xe2\x80\x99s implementing methodology is inherently unsuitable to women.\xe2\x80\x9d The Court of Appeals,\nhowever, accepted the District Court\xe2\x80\x99s finding that \xe2\x80\x9cat least these three aspects of VMI\xe2\x80\x99s programphysical training, the absence of privacy, and the adversative approach-would be materially affected\nby coeducation.\xe2\x80\x9d Remanding the case, the appeals court assigned to Virginia, in the first instance,\nresponsibility for selecting a remedial course. The court suggested these options for the State: Admit\nwomen to VMI; establish parallel institutions or programs; or abandon state support, leaving VMI free\nto pursue its policies as a private institution. In May 1993, this Court denied certiorari.\n\nC\nIn response to the Fourth Circuit\xe2\x80\x99s ruling, Virginia proposed a parallel program for women: Virginia\nWomen\xe2\x80\x99s Institute for Leadership (VWIL). The 4-year, state-sponsored undergraduate program would\nbe located at Mary Baldwin College, a private liberal arts school for women, and would be open,\ninitially, to about 25 to 30 students. Although VWIL would share VMI\xe2\x80\x99s mission-to produce \xe2\x80\x9ccitizensoldiers\xe2\x80\x9d-the VWIL program would differ, as does Mary Baldwin College, from VMI in academic\nofferings, methods of education, and financial resources.\nThe average combined SAT score of entrants at Mary Baldwin is about 100 points lower than the\nscore for VMI freshmen. Mary Baldwin\xe2\x80\x99s faculty holds \xe2\x80\x9csignificantly fewer Ph.D.\xe2\x80\x99s than the faculty at\nVMI,\xe2\x80\x9d and receives significantly lower salaries. While VMI offers degrees in liberal arts, the sciences,\nand engineering, Mary Baldwin, at the time of trial, offered only bachelor of arts degrees. A VWIL\nstudent seeking to earn an engineering degree could gain one, without public support, by attending\nWashington University in St. Louis, Missouri, for two years, paying the required private tuition.\nExperts in educating women at the college level composed the Task Force charged with designing the\nVWIL program; Task Force members were drawn from Mary Baldwin\xe2\x80\x99s own faculty and staff. Training\nits attention on methods of instruction appropriate for \xe2\x80\x9cmost women,\xe2\x80\x9d the Task Force determined that\na military model would be \xe2\x80\x9cwholly inappropriate\xe2\x80\x9d for VWIL.\nVWIL students would participate in ROTC programs and a newly established, \xe2\x80\x9clargely ceremonial\xe2\x80\x9d\nVirginia Corps of Cadets, but the VWIL House would not have a military format, and VWIL would\nnot require its students to eat meals together or to wear uniforms during the school day. In lieu\nof VMI\xe2\x80\x99s adversative method, the VWIL Task Force favored \xe2\x80\x9ca cooperative method which reinforces\nself-esteem.\xe2\x80\x9d In addition to the standard bachelor of arts program offered at Mary Baldwin, VWIL\nstudents would take courses in leadership, complete an off-campus leadership externship, participate\nin community service projects, and assist in arranging a speaker series.\nVirginia represented that it will provide equal financial support for in-state VWIL students and VMI\ncadets, and the VMI Foundation agreed to supply a $5.4625 million endowment for the VWIL program.\nMary Baldwin\xe2\x80\x99s own endowment is about $19 million; VMI\xe2\x80\x99s is $131 million. Mary Baldwin will add $35\nmillion to its endowment based on future commitments; VMI will add $220 million. The VMI Alumni\n304 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cAssociation has developed a network of employers interested in hiring VMI graduates. The Association\nhas agreed to open its network to VWIL graduates, but those graduates will not have the advantage\nafforded by a VMI degree.\n\nD\nVirginia returned to the District Court seeking approval of its proposed remedial plan, and the court\ndecided the plan met the requirements of the Equal Protection Clause. The District Court again\nacknowledged evidentiary support for these determinations: \xe2\x80\x9c[T]he VMI methodology could be used\nto educate women and, in fact, some women . . . may prefer the VMI methodology to the VWIL\nmethodology.\xe2\x80\x9d But the \xe2\x80\x9ccontrolling legal principles,\xe2\x80\x9d the District Court decided, \xe2\x80\x9cdo not require the\nCommonwealth to provide a mirror image VMI for women.\xe2\x80\x9d The court anticipated that the two schools\nwould \xe2\x80\x9cachieve substantially similar outcomes.\xe2\x80\x9d It concluded: \xe2\x80\x9cIf VMI marches to the beat of a drum,\nthen Mary Baldwin marches to the melody of a fife and when the march is over, both will have arrived\nat the same destination.\xe2\x80\x9d\nA divided Court of Appeals affirmed the District Court\xe2\x80\x99s judgment. * * * * \xe2\x80\x9c[P]roviding the option of\na single-gender college education may be considered a legitimate and important aspect of a public\nsystem of higher education,\xe2\x80\x9d the appeals court observed; that objective, the court added, is \xe2\x80\x9cnot\npernicious.\xe2\x80\x9d Moreover, the court continued, the adversative method vital to a VMI education \xe2\x80\x9chas\nnever been tolerated in a sexually heterogeneous environment.\xe2\x80\x9d The method itself \xe2\x80\x9cwas not designed\nto exclude women,\xe2\x80\x9d the court noted, but women could not be accommodated in the VMI program, the\ncourt believed, for female participation in VMI\xe2\x80\x99s adversative training \xe2\x80\x9cwould destroy . . . any sense of\ndecency that still permeates the relationship between the sexes.\xe2\x80\x9d\nHaving determined, deferentially, the legitimacy of Virginia\xe2\x80\x99s purpose, the court considered the\nquestion of means. Exclusion of \xe2\x80\x9cmen at Mary Baldwin College and women at VMI,\xe2\x80\x9d the court said,\nwas essential to Virginia\xe2\x80\x99s purpose, for without such exclusion, the State could not \xe2\x80\x9caccomplish [its]\nobjective of providing single-gender education.\xe2\x80\x9d\nThe court recognized that, as it analyzed the case, means merged into end, and the merger risked\n\xe2\x80\x9cbypass[ing] any equal protection scrutiny.\xe2\x80\x9d * * * *\nSenior Circuit Judge Phillips dissented. The court, in his judgment, had not held Virginia to the burden\nof showing an \xe2\x80\x9c\xe2\x80\x98exceedingly persuasive [ justification]\xe2\x80\x99\xe2\x80\x9d for the State\xe2\x80\x99s action (quoting Mississippi\nUniversity for Women). In Judge Phillips\xe2\x80\x99 view, the court had accepted \xe2\x80\x9crationalizations compelled\nby the exigencies of this litigation,\xe2\x80\x9d and had not confronted the State\xe2\x80\x99s \xe2\x80\x9cactual overriding purpose.\xe2\x80\x9d\nThat purpose, Judge Phillips said, was clear from the historical record; it was \xe2\x80\x9cnot to create a new\ntype of educational opportunity for women, . . . nor to further diversify the Commonwealth\xe2\x80\x99s higher\neducation system[,] . . . but [was] simply . . . to allow VMI to continue to exclude women in order to\npreserve its historic character and mission.\xe2\x80\x9d * * * *\nThe Fourth Circuit denied rehearing en banc. Circuit Judge Motz, joined by Circuit Judges Hall,\nMurnaghan, and Michael, filed a dissenting opinion. * * * * \xe2\x80\x9cWomen need not be guaranteed equal\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 305\n\n\x0c\xe2\x80\x98results,\xe2\x80\x99\xe2\x80\x9d Judge Motz said, \xe2\x80\x9cbut the Equal Protection Clause does require equal opportunity . . . [and]\nthat opportunity is being denied here.\xe2\x80\x9d\n\nIII\nThe cross-petitions in this case present two ultimate issues. First, does Virginia\xe2\x80\x99s exclusion of women\nfrom the educational opportunities provided by VMI-extraordinary opportunities for military training\nand civilian leadership development-deny to women \xe2\x80\x9ccapable of all of the individual activities required\nof VMI cadets,\xe2\x80\x9d the equal protection of the laws guaranteed by the Fourteenth Amendment? Second,\nif VMI\xe2\x80\x99s \xe2\x80\x9cunique\xe2\x80\x9d situation, -as Virginia\xe2\x80\x99s sole single-sex public institution of higher education-offends\nthe Constitution\xe2\x80\x99s equal protection principle, what is the remedial requirement?\n\nIV\nWe note, once again, the core instruction of this Court\xe2\x80\x99s pathmarking decisions in J. E. B. v. Alabama\nex rel. T. B. (1994), and Mississippi Univ. for Women: Parties who seek to defend gender-based\ngovernment action must demonstrate an \xe2\x80\x9cexceedingly persuasive justification\xe2\x80\x9d for that action.\nToday\xe2\x80\x99s skeptical scrutiny of official action denying rights or opportunities based on sex responds\nto volumes of history. As a plurality of this Court acknowledged a generation ago, \xe2\x80\x9cour Nation has\nhad a long and unfortunate history of sex discrimination.\xe2\x80\x9d Frontiero v. Richardson (1973). Through a\ncentury plus three decades and more of that history, women did not count among voters composing\n\xe2\x80\x9cWe the People\xe2\x80\x9d; not until 1920 did women gain a constitutional right to the franchise. And for a half\ncentury thereafter, it remained the prevailing doctrine that government, both federal and state, could\nwithhold from women opportunities accorded men so long as any \xe2\x80\x9cbasis in reason\xe2\x80\x9d could be conceived\nfor the discrimination. See, e.g., Goesaert v. Cleary (1948).\nIn 1971, for the first time in our Nation\xe2\x80\x99s history, this Court ruled in favor of a woman who complained\nthat her State had denied her the equal protection of its laws. Reed v. Reed. Since Reed, the Court\nhas repeatedly recognized that neither federal nor state government acts compatibly with the equal\nprotection principle when a law or official policy denies to women, simply because they are women,\nfull citizenship stature-equal opportunity to aspire, achieve, participate in and contribute to society\nbased on their individual talents and capacities. See, e.g., Kirchberg v. Feenstra (1981) (affirming\ninvalidity of Louisiana law that made husband \xe2\x80\x9chead and master\xe2\x80\x9d of property jointly owned with his\nwife, giving him unilateral right to dispose of such property without his wife\xe2\x80\x99s consent); Stanton v.\nStanton (1975) (invalidating Utah requirement that parents support boys until age 21, girls only until\nage 18).\nWithout equating gender classifications, for all purposes, to classifications based on race or national\norigin, the Court, in post-Reed decisions, has carefully inspected official action that closes a door\nor denies opportunity to women (or to men). See J. E. B., (Kennedy, J., concurring in judgment) (case\nlaw evolving since 1971 \xe2\x80\x9creveal[s] a strong presumption that gender classifications are invalid\xe2\x80\x9d). To\n306 | Liberty, Equality, and Due Process: Third Edition\n\n\x0csummarize the Court\xe2\x80\x99s current directions for cases of official classification based on gender: Focusing\non the differential treatment or denial of opportunity for which relief is sought, the reviewing\ncourt must determine whether the proffered justification is \xe2\x80\x9cexceedingly persuasive.\xe2\x80\x9d The burden of\njustification is demanding and it rests entirely on the State. See Mississippi Univ. for Women. The State\nmust show \xe2\x80\x9cat least that the [challenged] classification serves \xe2\x80\x98important governmental objectives\nand that the discriminatory means employed\xe2\x80\x99 are \xe2\x80\x98substantially related to the achievement of those\nobjectives.\xe2\x80\x99\xe2\x80\x9d Id. The justification must be genuine, not hypothesized or invented post hoc in response\nto litigation. And it must not rely on overbroad generalizations about the different talents, capacities,\nor preferences of males and females. See Weinberger v. Wiesenfeld (1975); Califano v. Goldfarb (1977)\n(Stevens, J., concurring in judgment).\nThe heightened review standard our precedent establishes does not make sex a proscribed\nclassification. Supposed \xe2\x80\x9cinherent differences\xe2\x80\x9d are no longer accepted as a ground for race or national\norigin classifications. See Loving v. Virginia (1967). Physical differences between men and women,\nhowever, are enduring: \xe2\x80\x9c[T]he two sexes are not fungible; a community made up exclusively of one\n[sex] is different from a community composed of both.\xe2\x80\x9d Ballard v. United States (1946).\n\xe2\x80\x9cInherent differences\xe2\x80\x9d between men and women, we have come to appreciate, remain cause for\ncelebration, but not for denigration of the members of either sex or for artificial constraints on\nan individual\xe2\x80\x99s opportunity. Sex classifications may be used to compensate women \xe2\x80\x9cfor particular\neconomic disabilities [they have] suffered,\xe2\x80\x9d Califano v. Webster (1977) (per curiam), to \xe2\x80\x9cpromot[e] equal\nemployment opportunity,\xe2\x80\x9d see California Federal Sav. & Loan Assn. v. Guerra (1987), to advance full\ndevelopment of the talent and capacities of our Nation\xe2\x80\x99s people. But such classifications may not\nbe used, as they once were, see Goesaert, to create or perpetuate the legal, social, and economic\ninferiority of women.\nMeasuring the record in this case against the review standard just described, we conclude that\nVirginia has shown no \xe2\x80\x9cexceedingly persuasive justification\xe2\x80\x9d for excluding all women from the citizensoldier training afforded by VMI. We therefore affirm the Fourth Circuit\xe2\x80\x99s initial judgment, which held\nthat Virginia had violated the Fourteenth Amendment\xe2\x80\x99s Equal Protection Clause. Because the remedy\nproffered by Virginia-the Mary Baldwin VWIL program-does not cure the constitutional violation, i.e.,\nit does not provide equal opportunity, we reverse the Fourth Circuit\xe2\x80\x99s final judgment in this case.\n\nV\nThe Fourth Circuit initially held that Virginia had advanced no state policy by which it could justify,\nunder equal protection principles, its determination \xe2\x80\x9cto afford VMI\xe2\x80\x99s unique type of program to men\nand not to women.\xe2\x80\x9d Virginia challenges that \xe2\x80\x9cliability\xe2\x80\x9d ruling and asserts two justifications in defense\nof VMI\xe2\x80\x99s exclusion of women. First, the Commonwealth contends, \xe2\x80\x9csingle-sex education provides\nimportant educational benefits,\xe2\x80\x9d and the option of single-sex education contributes to \xe2\x80\x9cdiversity in\neducational approaches.\xe2\x80\x9d Second, the Commonwealth argues, \xe2\x80\x9cthe unique VMI method of character\ndevelopment and leadership training,\xe2\x80\x9d the school\xe2\x80\x99s adversative approach, would have to be modified\nwere VMI to admit women. We consider these two justifications in turn.\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 307\n\n\x0cA\nSingle-sex education affords pedagogical benefits to at least some students, Virginia emphasizes,\nand that reality is uncontested in this litigation. Similarly, it is not disputed that diversity among\npublic educational institutions can serve the public good. But Virginia has not shown that VMI\nwas established, or has been maintained, with a view to diversifying, by its categorical exclusion of\nwomen, educational opportunities within the State. In cases of this genre, our precedent instructs\nthat \xe2\x80\x9cbenign\xe2\x80\x9d justifications proffered in defense of categorical exclusions will not be accepted\nautomatically; a tenable justification must describe actual state purposes, not rationalizations for\nactions in fact differently grounded.\nMississippi Univ. for Women is immediately in point. There the State asserted, in justification of its\nexclusion of men from a nursing school, that it was engaging in \xe2\x80\x9ceducational affirmative action\xe2\x80\x9d by\n\xe2\x80\x9ccompensat[ing] for discrimination against women.\xe2\x80\x9d Undertaking a \xe2\x80\x9csearching analysis,\xe2\x80\x9d the Court\nfound no close resemblance between \xe2\x80\x9cthe alleged objective\xe2\x80\x9d and \xe2\x80\x9cthe actual purpose underlying the\ndiscriminatory classification.\xe2\x80\x9d Pursuing a similar inquiry here, we reach the same conclusion.\nNeither recent nor distant history bears out Virginia\xe2\x80\x99s alleged pursuit of diversity through single-sex\neducational options. In 1839, when the State established VMI, a range of educational opportunities for\nmen and women was scarcely contemplated. Higher education at the time was considered dangerous\nfor women; reflecting widely held views about women\xe2\x80\x99s proper place, the Nation\xe2\x80\x99s first universities\nand colleges-for example, Harvard in Massachusetts, William and Mary in Virginia-admitted only men.\nVMI was not at all novel in this respect: In admitting no women, VMI followed the lead of the State\xe2\x80\x99s\nflagship school, the University of Virginia, founded in 1819. * * * *\nOur 1982 decision in Mississippi Univ. for Women prompted VMI to reexamine its male-only admission\npolicy. Virginia relies on that reexamination as a legitimate basis for maintaining VMI\xe2\x80\x99s single-sex\ncharacter. A Mission Study Committee, appointed by the VMI Board of Visitors, studied the problem\nfrom October 1983 until May 1986, and in that month counseled against \xe2\x80\x9cchange of VMI status as\na single-sex college.\xe2\x80\x9d Whatever internal purpose the Mission Study Committee served-and however\nwell-meaning the framers of the report-we can hardly extract from that effort any state policy\nevenhandedly to advance diverse educational options. As the District Court observed, the\nCommittee\xe2\x80\x99s analysis \xe2\x80\x9cprimarily focuse[d] on anticipated difficulties in attracting females to VMI,\xe2\x80\x9d and\nthe report, overall, supplied \xe2\x80\x9cvery little indication of how th[e] conclusion was reached.\xe2\x80\x9d\nIn sum, we find no persuasive evidence in this record that VMI\xe2\x80\x99s male-only admission policy \xe2\x80\x9cis\nin furtherance of a state policy of \xe2\x80\x98diversity.\xe2\x80\x99\xe2\x80\x9d No such policy, the Fourth Circuit observed, can be\ndiscerned from the movement of all other public colleges and universities in Virginia away from\nsingle-sex education. That court also questioned \xe2\x80\x9chow one institution with autonomy, but with\nno authority over any other state institution, can give effect to a state policy of diversity among\ninstitutions.\xe2\x80\x9d A purpose genuinely to advance an array of educational options, as the Court of Appeals\nrecognized, is not served by VMI\xe2\x80\x99s historic and constant plan-a plan to \xe2\x80\x9caffor[d] a unique educational\nbenefit only to males.\xe2\x80\x9d However \xe2\x80\x9cliberally\xe2\x80\x9d this plan serves the State\xe2\x80\x99s sons, it makes no provision\nwhatever for her daughters. That is not equal protection.\n308 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cB\nVirginia next argues that VMI\xe2\x80\x99s adversative method of training provides educational benefits that\ncannot be made available, unmodified, to women. Alterations to accommodate women would\nnecessarily be \xe2\x80\x9cradical,\xe2\x80\x9d so \xe2\x80\x9cdrastic,\xe2\x80\x9d Virginia asserts, as to transform, indeed \xe2\x80\x9cdestroy,\xe2\x80\x9d VMI\xe2\x80\x99s program.\nNeither sex would be favored by the transformation, Virginia maintains: Men would be deprived of\nthe unique opportunity currently available to them; women would not gain that opportunity because\ntheir participation would \xe2\x80\x9celiminat[e] the very aspects of [the] program that distinguish [VMI] from . . .\nother institutions of higher education in Virginia.\xe2\x80\x9d\nThe District Court forecast from expert witness testimony, and the Court of Appeals accepted,\nthat coeducation would materially affect \xe2\x80\x9cat least these three aspects of VMI\xe2\x80\x99s program-physical\ntraining, the absence of privacy, and the adversative approach.\xe2\x80\x9d And it is uncontested that women\xe2\x80\x99s\nadmission would require accommodations, primarily in arranging housing assignments and physical\ntraining programs for female cadets. It is also undisputed, however, that \xe2\x80\x9cthe VMI methodology could\nbe used to educate women.\xe2\x80\x9d The District Court even allowed that some women may prefer it to\nthe methodology a women\xe2\x80\x99s college might pursue. \xe2\x80\x9c[S]ome women, at least, would want to attend\n[VMI] if they had the opportunity,\xe2\x80\x9d the District Court recognized, and \xe2\x80\x9csome women,\xe2\x80\x9d the expert\ntestimony established, \xe2\x80\x9care capable of all of the individual activities required of VMI cadets.\xe2\x80\x9d The\nparties, furthermore, agree that \xe2\x80\x9csome women can meet the physical standards [VMI] now impose[s]\non men.\xe2\x80\x9d In sum, as the Court of Appeals stated, \xe2\x80\x9cneither the goal of producing citizen soldiers,\xe2\x80\x9d VMI\xe2\x80\x99s\nraison d\xe2\x80\x99\xc3\xa9tre, \xe2\x80\x9cnor VMI\xe2\x80\x99s implementing methodology is inherently unsuitable to women.\xe2\x80\x9d\nIn support of its initial judgment for Virginia, a judgment rejecting all equal protection objections\npresented by the United States, the District Court made \xe2\x80\x9cfindings\xe2\x80\x9d on \xe2\x80\x9cgender-based developmental\ndifferences.\xe2\x80\x9d These \xe2\x80\x9cfindings\xe2\x80\x9d restate the opinions of Virginia\xe2\x80\x99s expert witnesses, opinions about\ntypically male or typically female \xe2\x80\x9ctendencies.\xe2\x80\x9d For example, \xe2\x80\x9c[m]ales tend to need an atmosphere of\nadversativeness,\xe2\x80\x9d while \xe2\x80\x9c[f]emales tend to thrive in a cooperative atmosphere.\xe2\x80\x9d \xe2\x80\x9cI\xe2\x80\x99m not saying that\nsome women don\xe2\x80\x99t do well under [the] adversative model,\xe2\x80\x9d VMI\xe2\x80\x99s expert on educational institutions\ntestified, \xe2\x80\x9cundoubtedly there are some [women] who do\xe2\x80\x9d; but educational experiences must be\ndesigned \xe2\x80\x9caround the rule,\xe2\x80\x9d this expert maintained, and not \xe2\x80\x9caround the exception.\xe2\x80\x9d\nThe United States does not challenge any expert witness estimation on average capacities or\npreferences of men and women. Instead, the United States emphasizes that time and again since\nthis Court\xe2\x80\x99s turning point decision in Reed v. Reed (1971), we have cautioned reviewing courts to take\na \xe2\x80\x9chard look\xe2\x80\x9d at generalizations or \xe2\x80\x9ctendencies\xe2\x80\x9d of the kind pressed by Virginia, and relied upon\nby the District Court. State actors controlling gates to opportunity, we have instructed, may not\nexclude qualified individuals based on \xe2\x80\x9cfixed notions concerning the roles and abilities of males and\nfemales.\xe2\x80\x9d Mississippi Univ. for Women; see J. E. B. (equal protection principles, as applied to gender\nclassifications, mean state actors may not rely on \xe2\x80\x9coverbroad\xe2\x80\x9d generalizations to make \xe2\x80\x9cjudgments\nabout people that are likely to . . . perpetuate historical patterns of discrimination\xe2\x80\x9d).\nIt may be assumed, for purposes of this decision, that most women would not choose VMI\xe2\x80\x99s\nadversative method. As Fourth Circuit Judge Motz observed, however, in her dissent from the Court of\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 309\n\n\x0cAppeals\xe2\x80\x99 denial of rehearing en banc, it is also probable that \xe2\x80\x9cmany men would not want to be educated\nin such an environment.\xe2\x80\x9d (On that point, even our dissenting colleague might agree.) Education, to be\nsure, is not a \xe2\x80\x9cone size fits all\xe2\x80\x9d business. The issue, however, is not whether \xe2\x80\x9cwomen-or men-should be\nforced to attend VMI\xe2\x80\x9d; rather, the question is whether the State can constitutionally deny to women\nwho have the will and capacity, the training and attendant opportunities that VMI uniquely affords.\nThe notion that admission of women would downgrade VMI\xe2\x80\x99s stature, destroy the adversative system\nand, with it, even the school, is a judgment hardly proved, a prediction hardly different from other\n\xe2\x80\x9cself-fulfilling prophec[ies],\xe2\x80\x9d once routinely used to deny rights or opportunities. When women first\nsought admission to the bar and access to legal education, concerns of the same order were\nexpressed. For example, in 1876, the Court of Common Pleas of Hennepin County, Minnesota,\nexplained why women were thought ineligible for the practice of law. Women train and educate the\nyoung, the court said, which\n\xe2\x80\x9cforbids that they shall bestow that time (early and late) and labor, so essential in attaining\nto the eminence to which the true lawyer should ever aspire. It cannot therefore be said\nthat the opposition of courts to the admission of females to practice . . . is to any extent the\noutgrowth of . . . \xe2\x80\x98old fogyism[.]\xe2\x80\x99 . . . [I]t arises rather from a comprehension of the magnitude\nof the responsibilities connected with the successful practice of law, and a desire to grade up\nthe profession.\xe2\x80\x9d\nIn re Application of Martha Angle Dorsett to Be Admitted to Practice as Attorney and Counselor at Law\n(Minn. C. P. Hennepin Cty., 1876), in The Syllabi, Oct. 21, 1876, pp. 5, 6 (emphasis added).\n* * * * Medical faculties similarly resisted men and women as partners in the study of medicine.\n(\xe2\x80\x9c\xe2\x80\x98God forbid that I should ever see men and women aiding each other to display with the scalpel\nthe secrets of the reproductive system . . . .\xe2\x80\x99\xe2\x80\x9d)). More recently, women seeking careers in policing\nencountered resistance based on fears that their presence would \xe2\x80\x9cundermine male solidarity;\xe2\x80\x9d deprive\nmale partners of adequate assistance; and lead to sexual misconduct. Field studies did not confirm\nthese fears.\nWomen\xe2\x80\x99s successful entry into the federal military academies, and their participation in the Nation\xe2\x80\x99s\nmilitary forces, indicate that Virginia\xe2\x80\x99s fears for the future of VMI may not be solidly grounded.\nThe State\xe2\x80\x99s justification for excluding all women from \xe2\x80\x9ccitizen-soldier\xe2\x80\x9d training for which some are\nqualified, in any event, cannot rank as \xe2\x80\x9cexceedingly persuasive,\xe2\x80\x9d as we have explained and applied that\nstandard.\nVirginia and VMI trained their argument on \xe2\x80\x9cmeans\xe2\x80\x9d rather than \xe2\x80\x9cend,\xe2\x80\x9d and thus misperceived our\nprecedent. Single-sex education at VMI serves an \xe2\x80\x9cimportant governmental objective,\xe2\x80\x9d they\nmaintained, and exclusion of women is not only \xe2\x80\x9csubstantially related,\xe2\x80\x9d it is essential to that objective.\nBy this notably circular argument, the \xe2\x80\x9cstraightforward\xe2\x80\x9d test Mississippi Univ. for Women described,\nwas bent and bowed.\nThe State\xe2\x80\x99s misunderstanding and, in turn, the District Court\xe2\x80\x99s, is apparent from VMI\xe2\x80\x99s mission: to\nproduce \xe2\x80\x9ccitizen-soldiers,\xe2\x80\x9d individuals\n310 | Liberty, Equality, and Due Process: Third Edition\n\n\x0c\xe2\x80\x9cimbued with love of learning, confident in the functions and attitudes of leadership,\npossessing a high sense of public service, advocates of the American democracy and free\nenterprise system, and ready . . . to defend their country in time of national peril.\xe2\x80\x9d\nSurely that goal is great enough to accommodate women, who today count as citizens in our American\ndemocracy equal in stature to men. Just as surely, the State\xe2\x80\x99s great goal is not substantially advanced\nby women\xe2\x80\x99s categorical exclusion, in total disregard of their individual merit, from the State\xe2\x80\x99s premier\n\xe2\x80\x9ccitizen-soldier\xe2\x80\x9d corps. Virginia, in sum, \xe2\x80\x9chas fallen far short of establishing the \xe2\x80\x98exceedingly\npersuasive justification,\xe2\x80\x99\xe2\x80\x9d Mississippi Univ. for Women, that must be the solid base for any genderdefined classification.\n\nVI\nIn the second phase of the litigation, Virginia presented its remedial plan-maintain VMI as a male-only\ncollege and create VWIL as a separate program for women. * * * * The United States challenges this\n\xe2\x80\x9cremedial\xe2\x80\x9d ruling as pervasively misguided.\n\nA\nA remedial decree, this Court has said, must closely fit the constitutional violation; it must be\nshaped to place persons unconstitutionally denied an opportunity or advantage in \xe2\x80\x9cthe position\nthey would have occupied in the absence of [discrimination].\xe2\x80\x9d See Milliken v. Bradley (1977). The\nconstitutional violation in this case is the categorical exclusion of women from an extraordinary\neducational opportunity afforded men. * * * *\nVirginia chose not to eliminate, but to leave untouched, VMI\xe2\x80\x99s exclusionary policy. For women only,\nhowever, Virginia proposed a separate program, different in kind from VMI and unequal in tangible\nand intangible facilities. Having violated the Constitution\xe2\x80\x99s equal protection requirement, Virginia\nwas obliged to show that its remedial proposal \xe2\x80\x9cdirectly address[ed] and relate[d] to\xe2\x80\x9d the violation,\nsee Milliken, i.e., the equal protection denied to women ready, willing, and able to benefit from\neducational opportunities of the kind VMI offers. Virginia described VWIL as a \xe2\x80\x9cparallel program,\xe2\x80\x9d\nand asserted that VWIL shares VMI\xe2\x80\x99s mission of producing \xe2\x80\x9ccitizen-soldiers\xe2\x80\x9d and VMI\xe2\x80\x99s goals of\nproviding \xe2\x80\x9ceducation, military training, mental and physical discipline, character . . . and leadership\ndevelopment.\xe2\x80\x9d * * * * In exposing the character of, and differences in, the VMI and VWIL programs,\nwe recapitulate facts earlier presented. * * * *\nVirginia maintains that these methodological differences are \xe2\x80\x9cjustified pedagogically,\xe2\x80\x9d based on\n\xe2\x80\x9cimportant differences between men and women in learning and developmental needs,\xe2\x80\x9d\n\xe2\x80\x9cpsychological and sociological differences\xe2\x80\x9d Virginia describes as \xe2\x80\x9creal\xe2\x80\x9d and \xe2\x80\x9cnot stereotypes.\xe2\x80\x9d The\nTask Force charged with developing the leadership program for women, drawn from the staff and\nfaculty at Mary Baldwin College, \xe2\x80\x9cdetermined that a military model and, especially VMI\xe2\x80\x99s adversative\nmethod, would be wholly inappropriate for educating and training most women.\xe2\x80\x9d * * * *\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 311\n\n\x0cAs earlier stated, generalizations about \xe2\x80\x9cthe way women are,\xe2\x80\x9d estimates of what is appropriate for\nmost women, no longer justify denying opportunity to women whose talent and capacity place them\noutside the average description. Notably, Virginia never asserted that VMI\xe2\x80\x99s method of education suits\nmost men. It is also revealing that Virginia accounted for its failure to make the VWIL experience \xe2\x80\x9cthe\nentirely militaristic experience of VMI\xe2\x80\x9d on the ground that VWIL \xe2\x80\x9cis planned for women who do not\nnecessarily expect to pursue military careers.\xe2\x80\x9d By that reasoning, VMI\xe2\x80\x99s \xe2\x80\x9centirely militaristic\xe2\x80\x9d program\nwould be inappropriate for men in general or as a group, for \xe2\x80\x9c[o]nly about 15% of VMI cadets enter\ncareer military service.\xe2\x80\x9d\nIn contrast to the generalizations about women on which Virginia rests, we note again these\ndispositive realties: VMI\xe2\x80\x99s \xe2\x80\x9cimplementing methodology\xe2\x80\x9d is not \xe2\x80\x9cinherently unsuitable to women;\xe2\x80\x9d\n\xe2\x80\x9csome women . . . do well under [the] adversative model;\xe2\x80\x9d \xe2\x80\x9csome women, at least, would want to attend\n[VMI] if they had the opportunity;\xe2\x80\x9d \xe2\x80\x9csome women are capable of all of the individual activities required\nof VMI cadets,\xe2\x80\x9d and \xe2\x80\x9ccan meet the physical standards [VMI] now impose[s] on men.\xe2\x80\x9d It is on behalf of\nthese women that the United States has instituted this suit, and it is for them that a remedy must\nbe crafted, a remedy that will end their exclusion from a state-supplied educational opportunity for\nwhich they are fit, a decree that will \xe2\x80\x9cbar like discrimination in the future.\xe2\x80\x9d\n\nB\nIn myriad respects other than military training, VWIL does not qualify as VMI\xe2\x80\x99s equal. VWIL\xe2\x80\x99s student\nbody, faculty, course offerings, and facilities hardly match VMI\xe2\x80\x99s. Nor can the VWIL graduate\nanticipate the benefits associated with VMI\xe2\x80\x99s 157-year history, the school\xe2\x80\x99s prestige, and its influential\nalumni network. * * * *\nVirginia\xe2\x80\x99s VWIL solution is reminiscent of the remedy Texas proposed 50 years ago, in response\nto a state trial court\xe2\x80\x99s 1946 ruling that, given the equal protection guarantee, African Americans\ncould not be denied a legal education at a state facility. See Sweatt v. Painter (1950). Reluctant to\nadmit African Americans to its flagship University of Texas Law School, the State set up a separate\nschool for Herman Sweatt and other black law students. As originally opened, the new school had no\nindependent faculty or library, and it lacked accreditation. Nevertheless, the state trial and appellate\ncourts were satisfied that the new school offered Sweatt opportunities for the study of law\n\xe2\x80\x9csubstantially equivalent to those offered by the State to white students at the University of Texas.\xe2\x80\x9d\n* * * * More important than the tangible features, the Court emphasized, are \xe2\x80\x9cthose qualities which\nare incapable of objective measurement but which make for greatness\xe2\x80\x9d in a school, including\n\xe2\x80\x9creputation of the faculty, experience of the administration, position and influence of the alumni,\nstanding in the community, traditions and prestige.\xe2\x80\x9d Facing the marked differences reported in the\nSweatt opinion, the Court unanimously ruled that Texas had not shown \xe2\x80\x9csubstantial equality in\nthe [separate] educational opportunities\xe2\x80\x9d the State offered. Accordingly, the Court held, the Equal\nProtection Clause required Texas to admit African Americans to the University of Texas Law School.\nIn line with Sweatt, we rule here that Virginia has not shown substantial equality in the separate\neducational opportunities the State supports at VWIL and VMI.\n\n312 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cC\nWhen Virginia tendered its VWIL plan, * * * * the Court of Appeals considered whether the State\ncould provide, with fidelity to the equal protection principle, separate and unequal educational\nprograms for men and women.\n* * * * In sum, Virginia\xe2\x80\x99s remedy does not match the constitutional violation; the State has shown\nno \xe2\x80\x9cexceedingly persuasive justification\xe2\x80\x9d for withholding from women qualified for the experience\npremier training of the kind VMI affords.\n\nVII\n* * * * A prime part of the history of our Constitution, historian Richard Morris recounted, is the story\nof the extension of constitutional rights and protections to people once ignored or excluded. VMI\xe2\x80\x99s\nstory continued as our comprehension of \xe2\x80\x9cWe the People\xe2\x80\x9d expanded. There is no reason to believe\nthat the admission of women capable of all the activities required of VMI cadets would destroy the\nInstitute rather than enhance its capacity to serve the \xe2\x80\x9cmore perfect Union.\xe2\x80\x9d\nFor the reasons stated, the initial judgment of the Court of Appeals is affirmed, the final judgment of\nthe Court of Appeals is reversed, and the case is remanded for further proceedings consistent with\nthis opinion.\nIt is so ordered.\nJUSTICE THOMAS TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE.\nCHIEF JUSTICE REHNQUIST, CONCURRING IN JUDGMENT.\nThe Court holds first that Virginia violates the Equal Protection Clause by maintaining the Virginia\nMilitary Institute\xe2\x80\x99s (VMI\xe2\x80\x99s) all-male admissions policy, and second that establishing the Virginia\nWomen\xe2\x80\x99s Institute for Leadership (VWIL) program does not remedy that violation. While I agree with\nthese conclusions, I disagree with the Court\xe2\x80\x99s analysis and so I write separately.\n* * * * [U]nlike the majority, I would consider only evidence that postdates our decision in {Mississippi\nUniversity for Women v.} Hogan, and would draw no negative inferences from the State\xe2\x80\x99s actions\nbefore that time. I think that after Hogan, the State was entitled to reconsider its policy with respect\nto VMI, and to not have earlier justifications, or lack thereof, held against it.\nEven if diversity in educational opportunity were the State\xe2\x80\x99s actual objective, the State\xe2\x80\x99s position\nwould still be problematic. The difficulty with its position is that the diversity benefited only one\nsex; there was single-sex public education available for men at VMI, but no corresponding single-sex\npublic education available for women. When Hogan placed Virginia on notice that VMI\xe2\x80\x99s admissions\npolicy possibly was unconstitutional, VMI could have dealt with the problem by admitting women;\nbut its governing body felt strongly that the admission of women would have seriously harmed the\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 313\n\n\x0cinstitution\xe2\x80\x99s educational approach. Was there something else the State could have done to avoid an\nequal protection violation? Since the State did nothing, we do not have to definitively answer that\nquestion.\nI do not think, however, that the State\xe2\x80\x99s options were as limited as the majority may imply. * * * * In\nthe words of Grover Cleveland\xe2\x80\x99s second inaugural address, the State faced a condition, not a theory.\nAnd it was a condition that had been brought about, not through defiance of decisions construing\ngender bias under the Equal Protection Clause, but, until the decision in Hogan, a condition which had\nnot appeared to offend the Constitution. Had Virginia made a genuine effort to devote comparable\npublic resources to a facility for women, and followed through on such a plan, it might well have\navoided an equal protection violation. I do not believe the State was faced with the stark choice of\neither admitting women to VMI, on the one hand, or abandoning VMI and starting from scratch for\nboth men and women, on the other.\nBut, as I have noted, neither the governing board of VMI nor the State took any action after 1982. If\ndiversity in the form of single-sex, as well as coeducational, institutions of higher learning were to be\navailable to Virginians, that diversity had to be available to women as well as to men.\n* * * * It would be a sufficient remedy, I think, if the two institutions offered the same quality of\neducation and were of the same overall calibre.\nIf a state decides to create single-sex programs, the state would, I expect, consider the public\xe2\x80\x99s\ninterest and demand in designing curricula. And rightfully so. But the state should avoid assuming\ndemand based on stereotypes; it must not assume a priori, without evidence, that there would be no\ninterest in a women\xe2\x80\x99s school of civil engineering, or in a men\xe2\x80\x99s school of nursing.\nIn the end, the women\xe2\x80\x99s institution Virginia proposes, VWIL, fails as a remedy, because it is distinctly\ninferior to the existing men\xe2\x80\x99s institution and will continue to be for the foreseeable future. VWIL\nsimply is not, in any sense, the institution that VMI is. In particular, VWIL is a program appended to a\nprivate college, not a self-standing institution; and VWIL is substantially underfunded as compared to\nVMI. I therefore ultimately agree with the Court that Virginia has not provided an adequate remedy.\nJUSTICE SCALIA, DISSENTING.\nToday the Court shuts down an institution that has served the people of the Commonwealth of\nVirginia with pride and distinction for over a century and a half. To achieve that desired result, it\nrejects (contrary to our established practice) the factual findings of two courts below, sweeps aside\nthe precedents of this Court, and ignores the history of our people. As to facts: it explicitly rejects the\nfinding that there exist \xe2\x80\x9cgender-based developmental differences\xe2\x80\x9d supporting Virginia\xe2\x80\x99s restriction of\nthe \xe2\x80\x9cadversative\xe2\x80\x9d method to only a men\xe2\x80\x99s institution, and the finding that the all-male composition\nof the Virginia Military Institute (VMI) is essential to that institution\xe2\x80\x99s character. As to precedent: it\ndrastically revises our established standards for reviewing sex-based classifications. And as to history:\nit counts for nothing the long tradition, enduring down to the present, of men\xe2\x80\x99s military colleges\nsupported by both States and the Federal Government.\n\n314 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cMuch of the Court\xe2\x80\x99s opinion is devoted to deprecating the closed-mindedness of our forebears with\nregard to women\xe2\x80\x99s education, and even with regard to the treatment of women in areas that have\nnothing to do with education. Closed-minded they were-as every age is, including our own, with\nregard to matters it cannot guess, because it simply does not consider them debatable. The virtue of\na democratic system with a First Amendment is that it readily enables the people, over time, to be\npersuaded that what they took for granted is not so, and to change their laws accordingly. That system\nis destroyed if the smug assurances of each age are removed from the democratic process and written\ninto the Constitution. So to counterbalance the Court\xe2\x80\x99s criticism of our ancestors, let me say a word in\ntheir praise: they left us free to change. The same cannot be said of this most illiberal Court, which has\nembarked on a course of inscribing one after another of the current preferences of the society (and\nin some cases only the counter-majoritarian preferences of the society\xe2\x80\x99s law-trained elite) into our\nBasic Law. Today it enshrines the notion that no substantial educational value is to be served by an allmen\xe2\x80\x99s military academy-so that the decision by the people of Virginia to maintain such an institution\ndenies equal protection to women who cannot attend that institution but can attend others. Since it is\nentirely clear that the Constitution of the United States-the old one-takes no sides in this educational\ndebate, I dissent.\n\nI\nI shall devote most of my analysis to evaluating the Court\xe2\x80\x99s opinion on the basis of our current equalprotection jurisprudence, which regards this Court as free to evaluate everything under the sun by\napplying one of three tests: \xe2\x80\x9crational basis\xe2\x80\x9d scrutiny, intermediate scrutiny, or strict scrutiny. These\ntests are no more scientific than their names suggest, and a further element of randomness is added\nby the fact that it is largely up to us which test will be applied in each case. Strict scrutiny, we have\nsaid, is reserved for state \xe2\x80\x9cclassifications based on race or national origin and classifications affecting\nfundamental rights,\xe2\x80\x9d Clark v. Jeter (1988). It is my position that the term \xe2\x80\x9cfundamental rights\xe2\x80\x9d should\nbe limited to \xe2\x80\x9cinterest[s] traditionally protected by our society,\xe2\x80\x9d but the Court has not accepted that\nview, so that strict scrutiny will be applied to the deprivation of whatever sort of right we consider\n\xe2\x80\x9cfundamental.\xe2\x80\x9d We have no established criterion for \xe2\x80\x9cintermediate scrutiny\xe2\x80\x9d either, but essentially\napply it when it seems like a good idea to load the dice. So far it has been applied to content-neutral\nrestrictions that place an incidental burden on speech {under the First Amendment} to disabilities\nattendant to illegitimacy, and to discrimination on the basis of sex.\nI have no problem with a system of abstract tests such as rational-basis, intermediate, and strict\nscrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny\nwhenever we feel like it). Such formulas are essential to evaluating whether the new restrictions that\na changing society constantly imposes upon private conduct comport with that \xe2\x80\x9cequal protection\xe2\x80\x9d\nour society has always accorded in the past. But in my view the function of this Court is to preserve\nour society\xe2\x80\x99s values regarding (among other things) equal protection, not to revise them; to prevent\nbacksliding from the degree of restriction the Constitution imposed upon democratic government,\nnot to prescribe, on our own authority, progressively higher degrees. For that reason it is my view\nthat, whatever abstract tests we may choose to devise, they cannot supersede-and indeed ought to\nbe crafted so as to reflect-those constant and unbroken national traditions that embody the people\xe2\x80\x99s\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 315\n\n\x0cunderstanding of ambiguous constitutional texts. More specifically, it is my view that \xe2\x80\x9cwhen a practice\nnot expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of\nopen, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no\nproper basis for striking it down.\xe2\x80\x9d The same applies, mutatis mutandis, to a practice asserted to be in\nviolation of the post-Civil War Fourteenth Amendment.\nThe all-male constitution of VMI comes squarely within such a governing tradition. Founded by\nthe Commonwealth of Virginia in 1839 and continuously maintained by it since, VMI has always\nadmitted only men. And in that regard it has not been unusual. For almost all of VMI\xe2\x80\x99s more than a\ncentury and a half of existence, its single-sex status reflected the uniform practice for governmentsupported military colleges. Another famous Southern institution, The Citadel, has existed as a\nstate-funded school of South Carolina since 1842. And all the federal military colleges-West Point,\nthe Naval Academy at Annapolis, and even the Air Force Academy, which was not established until\n1954-admitted only males for most of their history. Their admission of women in 1976 (upon which\nthe Court today relies), came not by court decree, but because the people, through their elected\nrepresentatives, decreed a change. In other words, the tradition of having government-funded\nmilitary schools for men is as well rooted in the traditions of this country as the tradition of sending\nonly men into military combat. The people may decide to change the one tradition, like the other,\nthrough democratic processes; but the assertion that either tradition has been unconstitutional\nthrough the centuries is not law, but politics-smuggled-into-law.\nAnd the same applies, more broadly, to single-sex education in general, which, as I shall discuss,\nis threatened by today\xe2\x80\x99s decision with the cut-off of all state and federal support. Government-run\nnonmilitary educational institutions for the two sexes have until very recently also been part of\nour national tradition. \xe2\x80\x9c[It is] [c]oeducation, historically, [that] is a novel educational theory. From\ngrade school through high school, college, and graduate and professional training, much of the\nNation\xe2\x80\x99s population during much of our history has been educated in sexually segregated classrooms.\xe2\x80\x9d\nMississippi Univ. for Women v. Hogan (1982) (Powell, J., dissenting). These traditions may of course be\nchanged by the democratic decisions of the people, as they largely have been.\nToday, however, change is forced upon Virginia, and reversion to single-sex education is prohibited\nnationwide, not by democratic processes but by order of this Court. Even while bemoaning the sorry,\nbygone days of \xe2\x80\x9cfixed notions\xe2\x80\x9d concerning women\xe2\x80\x99s education, the Court favors current notions so\nfixedly that it is willing to write them into the Constitution of the United States by application of\ncustom-built \xe2\x80\x9ctests.\xe2\x80\x9d This is not the interpretation of a Constitution, but the creation of one.\n\nII\nTo reject the Court\xe2\x80\x99s disposition today, however, it is not necessary to accept my view that the Court\xe2\x80\x99s\nmade-up tests cannot displace longstanding national traditions as the primary determinant of what\nthe Constitution means. It is only necessary to apply honestly the test the Court has been applying\nto sex-based classifications for the past two decades. It is well settled, as Justice O\xe2\x80\x99Connor stated\nsome time ago for a unanimous Court, that we evaluate a statutory classification based on sex under\n316 | Liberty, Equality, and Due Process: Third Edition\n\n\x0ca standard that lies \xe2\x80\x9c[b]etween th[e] extremes of rational basis review and strict scrutiny.\xe2\x80\x9d We have\ndenominated this standard \xe2\x80\x9cintermediate scrutiny\xe2\x80\x9d and under it have inquired whether the statutory\nclassification is \xe2\x80\x9csubstantially related to an important governmental objective.\xe2\x80\x9d\nBefore I proceed to apply this standard to VMI, I must comment upon the manner in which the\nCourt avoids doing so. Notwithstanding our above-described precedents and their \xe2\x80\x9c\xe2\x80\x98firmly established\nprinciples,\xe2\x80\x99\xe2\x80\x9d the United States urged us to hold in this case \xe2\x80\x9cthat strict scrutiny is the correct\nconstitutional standard for evaluating classifications that deny opportunities to individuals based on\ntheir sex.\xe2\x80\x9d The Court, while making no reference to the Government\xe2\x80\x99s argument, effectively accepts it.\nAlthough the Court in two places recites the test as stated in Hogan, which asks whether the State\nhas demonstrated \xe2\x80\x9cthat the classification serves important governmental objectives and that the\ndiscriminatory means employed are substantially related to the achievement of those objectives,\xe2\x80\x9d the\nCourt never answers the question presented in anything resembling that form. When it engages in\nanalysis, the Court instead prefers the phrase \xe2\x80\x9cexceedingly persuasive justification\xe2\x80\x9d from Hogan. The\nCourt\xe2\x80\x99s nine invocations of that phrase, and even its fanciful description of that imponderable as \xe2\x80\x9cthe\ncore instruction\xe2\x80\x9d of the Court\xe2\x80\x99s decisions in J. E. B. v. Alabama ex rel. T. B., and Hogan, would be\nunobjectionable if the Court acknowledged that whether a \xe2\x80\x9cjustification\xe2\x80\x9d is \xe2\x80\x9cexceedingly persuasive\xe2\x80\x9d\nmust be assessed by asking \xe2\x80\x9c[whether] the classification serves important governmental objectives\nand [whether] the discriminatory means employed are substantially related to the achievement of\nthose objectives.\xe2\x80\x9d Instead, however, the Court proceeds to interpret \xe2\x80\x9cexceedingly persuasive\njustification\xe2\x80\x9d in a fashion that contradicts the reasoning of Hogan and our other precedents.\nThat is essential to the Court\xe2\x80\x99s result, which can only be achieved by establishing that intermediate\nscrutiny is not survived if there are some women interested in attending VMI, capable of undertaking\nits activities, and able to meet its physical demands. * * * *\nOnly the amorphous \xe2\x80\x9cexceedingly persuasive justification\xe2\x80\x9d phrase, and not the standard elaboration\nof intermediate scrutiny, can be made to yield this conclusion that VMI\xe2\x80\x99s single-sex composition\nis unconstitutional because there exist several women (or, one would have to conclude under the\nCourt\xe2\x80\x99s reasoning, a single woman) willing and able to undertake VMI\xe2\x80\x99s program. Intermediate scrutiny\nhas never required a least-restrictive-means analysis, but only a \xe2\x80\x9csubstantial relation\xe2\x80\x9d between the\nclassification and the state interests that it serves. Thus, in Califano v. Webster (1977) (per curiam),\nwe upheld a congressional statute that provided higher Social Security benefits for women than for\nmen. We reasoned that \xe2\x80\x9cwomen . . . as such have been unfairly hindered from earning as much as\nmen,\xe2\x80\x9d but we did not require proof that each woman so benefited had suffered discrimination or\nthat each disadvantaged man had not; it was sufficient that even under the former congressional\nscheme \xe2\x80\x9cwomen on the average received lower retirement benefits than men.\xe2\x80\x9d The reasoning in our\nother intermediate-scrutiny cases has similarly required only a substantial relation between end and\nmeans, not a perfect fit. In Rostker v. Goldberg (1981), we held that selective-service registration\ncould constitutionally exclude women, because even \xe2\x80\x9cassuming that a small number of women could\nbe drafted for noncombat roles, Congress simply did not consider it worth the added burdens of\nincluding women in draft and registration plans.\xe2\x80\x9d In Metro Broadcasting, Inc. v. FCC (1990), overruled\non other grounds, Adarand Constructors, Inc. v. Pe\xc3\xb1a (1995), we held that a classification need not be\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 317\n\n\x0caccurate \xe2\x80\x9cin every case\xe2\x80\x9d to survive intermediate scrutiny so long as, \xe2\x80\x9cin the aggregate,\xe2\x80\x9d it advances\nthe underlying objective. There is simply no support in our cases for the notion that a sex-based\nclassification is invalid unless it relates to characteristics that hold true in every instance.\nNot content to execute a de facto abandonment of the intermediate scrutiny that has been our\nstandard for sex-based classifications for some two decades, the Court purports to reserve the\nquestion whether, even in principle, a higher standard (i.e., strict scrutiny) should apply. \xe2\x80\x9cThe Court\nhas,\xe2\x80\x9d it says, \xe2\x80\x9cthus far reserved most stringent judicial scrutiny for classifications based on race or\nnational origin . . .,\xe2\x80\x9d (emphasis added); and it describes our earlier cases as having done no more than\ndecline to \xe2\x80\x9cequat[e] gender classifications, for all purposes, to classifications based on race or national\norigin\xe2\x80\x9d (emphasis added). The wonderful thing about these statements is that they are not actually\nfalse-just as it would not be actually false to say that \xe2\x80\x9cour cases have thus far reserved the \xe2\x80\x98beyond a\nreasonable doubt\xe2\x80\x99 standard of proof for criminal cases,\xe2\x80\x9d or that \xe2\x80\x9cwe have not equated tort actions, for\nall purposes, to criminal prosecutions.\xe2\x80\x9d But the statements are misleading, insofar as they suggest that\nwe have not already categorically held strict scrutiny to be inapplicable to sex-based classifications.\nAnd the statements are irresponsible, insofar as they are calculated to destabilize current law. Our\ntask is to clarify the law-not to muddy the waters, and not to exact over-compliance by intimidation.\nThe States and the Federal Government are entitled to know before they act the standard to which\nthey will be held, rather than be compelled to guess about the outcome of Supreme Court peek-a-boo.\nThe Court\xe2\x80\x99s intimations are particularly out of place because it is perfectly clear that, if the question of\nthe applicable standard of review for sex-based classifications were to be regarded as an appropriate\nsubject for reconsideration, the stronger argument would be not for elevating the standard to strict\nscrutiny, but for reducing it to rational-basis review. The latter certainly has a firmer foundation in\nour past jurisprudence: Whereas no majority of the Court has ever applied strict scrutiny in a case\ninvolving sex-based classifications, we routinely applied rational-basis review until the 1970\xe2\x80\x99s. And of\ncourse normal, rational-basis review of sex-based classifications would be much more in accord with\nthe genesis of heightened standards of judicial review, the famous footnote in United States v. Carolene\nProducts Co. (1938), which said (intimatingly) that we did not have to inquire in the case at hand\nwhether prejudice against discrete and insular minorities may be a special condition, which\ntends seriously to curtail the operation of those political processes ordinarily to be relied\nupon to protect minorities, and which may call for a correspondingly more searching judicial\ninquiry.\nIt is hard to consider women a \xe2\x80\x9cdiscrete and insular minorit[y]\xe2\x80\x9d unable to employ the \xe2\x80\x9cpolitical\nprocesses ordinarily to be relied upon,\xe2\x80\x9d when they constitute a majority of the electorate. And the\nsuggestion that they are incapable of exerting that political power smacks of the same paternalism\nthat the Court so roundly condemns. Moreover, a long list of legislation proves the proposition false.\nSee, e.g., Equal Pay Act of 1963, 29 U. S. C. Section(s) 206(d); Title VII of the Civil Rights Act of 1964, 42\nU. S. C. Section(s) 2000e-2; Title IX of the Education Amendments of 1972, 20 U. S. C. Section(s) 1681;\nWomen\xe2\x80\x99s Business Ownership Act of 1988, Pub. L. 100-533, 102 Stat. 2689; Violence Against Women\nAct of 1994, Pub. L. 103-322, Title IV, 108 Stat. 1902.\n\n318 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cIII\nWith this explanation of how the Court has succeeded in making its analysis seem orthodox-and\nindeed, if intimations are to be believed, even overly generous to VMI-I now proceed to describe\nhow the analysis should have been conducted. The question to be answered, I repeat, is whether the\nexclusion of women from VMI is \xe2\x80\x9csubstantially related to an important governmental objective.\xe2\x80\x9d\n\nA\nIt is beyond question that Virginia has an important state interest in providing effective college\neducation for its citizens. That single-sex instruction is an approach substantially related to that\ninterest should be evident enough from the long and continuing history in this country of men\xe2\x80\x99s and\nwomen\xe2\x80\x99s colleges. But beyond that, as the Court of Appeals here stated: \xe2\x80\x9cThat single-gender education\nat the college level is beneficial to both sexes is a fact established in this case.\xe2\x80\x9d * * * *\nWhile no one questioned that for many students a coeducational environment was nonetheless not\ninappropriate, that could not obscure the demonstrated benefits of single-sex colleges. For example,\nthe District Court stated as follows:\n\xe2\x80\x9cOne empirical study in evidence, not questioned by any expert, demonstrates that single-sex colleges\nprovide better educational experiences than coeducational institutions. Students of both sexes\nbecome more academically involved, interact with faculty frequently, show larger increases in\nintellectual self-esteem and are more satisfied with practically all aspects of college experience\n(the sole exception is social life) compared with their counterparts in coeducational institutions.\nAttendance at an all-male college substantially increases the likelihood that a student will carry\nout career plans in law, business and college teaching, and also has a substantial positive effect on\nstarting salaries in business. Women\xe2\x80\x99s colleges increase the chances that those who attend will obtain\npositions of leadership, complete the baccalaureate degree, and aspire to higher degrees.\xe2\x80\x9d\n* * * * But besides its single-sex constitution, VMI is different from other colleges in another way. It\nemploys a \xe2\x80\x9cdistinctive educational method,\xe2\x80\x9d sometimes referred to as the \xe2\x80\x9cadversative, or doubting,\nmodel of education.\xe2\x80\x9d \xe2\x80\x9cPhysical rigor, mental stress, absolute equality of treatment, absence of privacy,\nminute regulation of behavior, and indoctrination in desirable values are the salient attributes of the\nVMI educational experience.\xe2\x80\x9d No one contends that this method is appropriate for all individuals;\neducation is not a \xe2\x80\x9cone size fits all\xe2\x80\x9d business. Just as a State may wish to support junior colleges,\nvocational institutes, or a law school that emphasizes case practice instead of classroom study, so\ntoo a State\xe2\x80\x99s decision to maintain within its system one school that provides the adversative method\nis \xe2\x80\x9csubstantially related\xe2\x80\x9d to its goal of good education. Moreover, it was uncontested that \xe2\x80\x9cif the\nstate were to establish a women\xe2\x80\x99s VMI-type [i.e., adversative] program, the program would attract an\ninsufficient number of participants to make the program work,\xe2\x80\x9d and it was found by the District Court\nthat if Virginia were to include women in VMI, the school \xe2\x80\x9cwould eventually find it necessary to drop\nthe adversative system altogether.\xe2\x80\x9d Thus, Virginia\xe2\x80\x99s options were an adversative method that excludes\nwomen or no adversative method at all.\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 319\n\n\x0c* * * * In these circumstances, Virginia\xe2\x80\x99s election to fund one public all-male institution and one\non the adversative model-and to concentrate its resources in a single entity that serves both these\ninterests in diversity-is substantially related to the State\xe2\x80\x99s important educational interests.\n\nB\nThe Court today has no adequate response to this clear demonstration of the conclusion produced by\napplication of intermediate scrutiny. Rather, it relies on a series of contentions that are irrelevant or\nerroneous as a matter of law, foreclosed by the record in this case, or both. * * * *\nThe Court argues that VMI would not have to change very much if it were to admit women. The\nprincipal response to that argument is that it is irrelevant: If VMI\xe2\x80\x99s single-sex status is substantially\nrelated to the government\xe2\x80\x99s important educational objectives, as I have demonstrated above and as\nthe Court refuses to discuss, that concludes the inquiry. There should be no debate in the federal\njudiciary over \xe2\x80\x9chow much\xe2\x80\x9d VMI would be required to change if it admitted women and whether that\nwould constitute \xe2\x80\x9ctoo much\xe2\x80\x9d change.\nBut if such a debate were relevant, the Court would certainly be on the losing side. The District Court\nfound as follows: \xe2\x80\x9c[T]he evidence establishes that key elements of the adversative VMI educational\nsystem, with its focus on barracks life, would be fundamentally altered, and the distinctive ends of\nthe system would be thwarted, if VMI were forced to admit females and to make changes necessary\nto accommodate their needs and interests.\xe2\x80\x9d Changes that the District Court\xe2\x80\x99s detailed analysis found\nwould be required include new allowances for personal privacy in the barracks, such as locked doors\nand coverings on windows, which would detract from VMI\xe2\x80\x99s approach of regulating minute details of\nstudent behavior, \xe2\x80\x9ccontradict the principle that everyone is constantly subject to scrutiny by everyone\nelse,\xe2\x80\x9d and impair VMI\xe2\x80\x99s \xe2\x80\x9ctotal egalitarian approach\xe2\x80\x9d under which every student must be \xe2\x80\x9ctreated alike\xe2\x80\x9d;\nchanges in the physical training program, which would reduce \xe2\x80\x9c[t]he intensity and aggressiveness of\nthe current program\xe2\x80\x9d; and various modifications in other respects of the adversative training program\nwhich permeates student life. As the Court of Appeals summarized it, \xe2\x80\x9cthe record supports the district\ncourt\xe2\x80\x99s findings that at least these three aspects of VMI\xe2\x80\x99s program-physical training, the absence\nof privacy, and the adversative approach-would be materially affected by coeducation, leading to a\nsubstantial change in the egalitarian ethos that is a critical aspect of VMI\xe2\x80\x99s training.\xe2\x80\x9d\nIn the face of these findings by two courts below, amply supported by the evidence, and resulting\nin the conclusion that VMI would be fundamentally altered if it admitted women, this Court simply\npronounces that \xe2\x80\x9c[t]he notion that admission of women would downgrade VMI\xe2\x80\x99s stature, destroy\nthe adversative system and, with it, even the school, is a judgment hardly proved.\xe2\x80\x9d The point about\n\xe2\x80\x9cdowngrad[ing] VMI\xe2\x80\x99s stature\xe2\x80\x9d is a strawman; no one has made any such claim. The point about\n\xe2\x80\x9cdestroy[ing] the adversative system\xe2\x80\x9d is simply false; the District Court not only stated that \xe2\x80\x9c[e]vidence\nsupports this theory,\xe2\x80\x9d but specifically concluded that while \xe2\x80\x9c[w]ithout a doubt\xe2\x80\x9d VMI could assimilate\nwomen, \xe2\x80\x9cit is equally without a doubt that VMI\xe2\x80\x99s present methods of training and education would\nhave to be changed\xe2\x80\x9d by a \xe2\x80\x9cmove away from its adversative new cadet system.\xe2\x80\x9d And the point about\n\xe2\x80\x9cdestroy[ing] the school,\xe2\x80\x9d depending upon what that ambiguous phrase is intended to mean, is either\n320 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cfalse or else sets a standard much higher than VMI had to meet. It sufficed to establish, as the District\nCourt stated, that VMI would be \xe2\x80\x9csignificantly different\xe2\x80\x9d upon the admission of women and \xe2\x80\x9cwould\neventually find it necessary to drop the adversative system altogether.\xe2\x80\x9d\nFinally, the absence of a precise \xe2\x80\x9call-women\xe2\x80\x99s analogue\xe2\x80\x9d to VMI is irrelevant. * * * *\nAlthough there is no precise female-only analogue to VMI, Virginia has created during this litigation\nthe Virginia Women\xe2\x80\x99s Institute for Leadership (VWIL), a state-funded all-women\xe2\x80\x99s program run by\nMary Baldwin College. I have thus far said nothing about VWIL because it is, under our established\ntest, irrelevant, so long as VMI\xe2\x80\x99s all-male character is \xe2\x80\x9csubstantially related\xe2\x80\x9d to an important state goal.\nBut VWIL now exists, and the Court\xe2\x80\x99s treatment of it shows how far-reaching today\xe2\x80\x99s decision is.\n\nC\nA few words are appropriate in response to the concurrence, which finds VMI unconstitutional on a\nbasis that is more moderate than the Court\xe2\x80\x99s but only at the expense of being even more implausible.\n****\n\nIV\nAs is frequently true, the Court\xe2\x80\x99s decision today will have consequences that extend far beyond the\nparties to the case. What I take to be the Court\xe2\x80\x99s unease with these consequences, and its resulting\nunwillingness to acknowledge them, cannot alter the reality.\n\nA\nUnder the constitutional principles announced and applied today, single-sex public education is\nunconstitutional. By going through the motions of applying a balancing test-asking whether the\nState has adduced an \xe2\x80\x9cexceedingly persuasive justification\xe2\x80\x9d for its sex-based classification-the Court\ncreates the illusion that government officials in some future case will have a clear shot at justifying\nsome sort of single-sex public education. * * * *\nAnd the rationale of today\xe2\x80\x99s decision is sweeping: for sex-based classifications, a redefinition of\nintermediate scrutiny that makes it indistinguishable from strict scrutiny. * * * *\nIn any event, regardless of whether the Court\xe2\x80\x99s rationale leaves some small amount of room for\nlawyers to argue, it ensures that single-sex public education is functionally dead. * * * *\n\nB\nThere are few extant single-sex public educational programs. The potential of today\xe2\x80\x99s decision for\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 321\n\n\x0cwidespread disruption of existing institutions lies in its application to private single-sex education.\nGovernment support is immensely important to private educational institutions. * * * *\nThe issue will be not whether government assistance turns private colleges into state actors, but\nwhether the government itself would be violating the Constitution by providing state support to\nsingle-sex colleges. * * * *\nJustice Brandeis said it is \xe2\x80\x9cone of the happy incidents of the federal system that a single courageous\nState may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments\nwithout risk to the rest of the country.\xe2\x80\x9d New State Ice Co. v. Liebmann (1932) (dissenting opinion). But it\nis one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on\nits Members\xe2\x80\x99 personal view of what would make a \xe2\x80\x9cmore perfect Union,\xe2\x80\x9d (a criterion only slightly more\nrestrictive than a \xe2\x80\x9cmore perfect world\xe2\x80\x9d), can impose its own favored social and economic dispositions\nnationwide. As today\xe2\x80\x99s disposition, and others this single Term, show, this places it beyond the power\nof a \xe2\x80\x9csingle courageous State,\xe2\x80\x9d not only to introduce novel dispositions that the Court frowns upon, but\nto reintroduce, or indeed even adhere to, disfavored dispositions that are centuries old. The sphere of\nself-government reserved to the people of the Republic is progressively narrowed.\n* * * * Today\xe2\x80\x99s decision does not leave VMI without honor; no court opinion can do that.\nIn an odd sort of way, it is precisely VMI\xe2\x80\x99s attachment to such old-fashioned concepts as manly\n\xe2\x80\x9chonor\xe2\x80\x9d that has made it, and the system it represents, the target of those who today succeed in\nabolishing public single-sex education. The record contains a booklet that all first-year VMI students\n(the so-called \xe2\x80\x9crats\xe2\x80\x9d) were required to keep in their possession at all times. Near the end there appears\nthe following period-piece, entitled \xe2\x80\x9cThe Code of a Gentleman\xe2\x80\x9d * * * * I do not know whether the\nmen of VMI lived by this Code; perhaps not. But it is powerfully impressive that a public institution\nof higher education still in existence sought to have them do so. I do not think any of us, women\nincluded, will be better off for its destruction.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=37#h5p-77\n\n322 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cC. Sex/Gender and \xe2\x80\x9cDifference\xe2\x80\x9d\nNote: Feminist Theories\nWhile one could consider the \xe2\x80\x9cSex/Gender\xe2\x80\x9d cases litigated under the Equal Protection Clause as\nflowing from feminism, similar to the manner in which the race and ethnicity cases flowed from the\n\xe2\x80\x9cCivil Rights movement,\xe2\x80\x9d there were several strands of feminism and feminists did not always agree\non which cases should be litigated and what the outcome of those cases should be. In part, this\nwas because there were laws that were deemed protective toward women as Justice Brennan noted\nin Frontiero: an \xe2\x80\x9cattitude of \xe2\x80\x98romantic paternalism\xe2\x80\x99 which, in practical effect, put women, not on a\npedestal, but in a cage.\xe2\x80\x9d But feminists were also divided on the meanings of equality, sex, gender,\ndifference, and the role of law. Further, feminists were divided along lines of class, race, ethnicity, as\nwell as politics. This produced a complex theoretical environment, but the theoretical perspectives\ncan be simplified into three major approaches.\nLiberal feminism, sometimes called formal equality, advocates that the law should treat men and\nwomen equally. Under this view, even a law that advantages or accommodates women should be\nsubject to the same rigor resulting in unconstitutionally.\nCultural feminism advocates that the law should recognize biological differences between men and\nwomen, and, more controversially should also recognize socio-biological differences between men\nand women. Under this view, a law that distinguishes between women and men might be subject to\nthe same rigor but might be constitutional.\nRadical feminism, sometimes called dominance-feminism, advocates that the law should\nrecognize \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x93 and work toward eliminating \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x93 the subordination of women to men; and further\nthat the law should question maleness as the default neutral standard. Under this view, a law that\nsubordinates women should be unconstitutional; a law that works toward ending that subordination\nshould be constitutional.\nSometimes, these three theoretical approaches all lead to the same result: the unconstitutionality\nof the provision in Frontiero might be an example. Other times, especially when the underlying\nissues involve reproductive capabilities, or the affective qualities arguably rooted in reproductive\ncapabilities (e.g., women are more nurturing), or sex, or sexual violence (\xe2\x80\x9cviolence against women\xe2\x80\x9d),\nthe perspectives \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x93 which would not necessarily be advocated by \xe2\x80\x9cfeminists\xe2\x80\x9d \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x93 support\nconflicting approaches and outcomes. Two controversial cases are illustrative.\nIn Geduldig v. Aiello, 417 U.S. 484 (1974), the Court considered an Equal Protection Clause challenge to a\nprovision in the California Unemployment Compensation Disability program that excluded pregnancy\nand pregnancy-related conditions from coverage. In an opinion for the Court for Justice Stewart,\nreversing the lower court, the Court held the California program constitutional. In footnote 20, the\nCourt explained:\nThe dissenting opinion {by Brennan, J., and joined by Douglas and Marshall, J.J.} to the contrary,\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 323\n\n\x0cthis case is thus a far cry from cases like Reed v. Reed (1971), and Frontiero v. Richardson\n(1973), involving discrimination based upon gender as such. The California insurance program\ndoes not exclude anyone from benefit eligibility because of gender, but merely removes one\nphysical condition\xe2\x80\x94pregnancy\xe2\x80\x94from the list of compensable disabilities. While it is true that\nonly women can become pregnant, it does not follow that every legislative classification\nconcerning pregnancy is a sex-based classification like those considered in Reed and Frontiero.\nNormal pregnancy is an objectively identifiable physical condition with unique characteristics.\nAbsent a showing that distinctions involving pregnancy are mere pretexts designed to effect\nan invidious discrimination against the members of one sex or the other, lawmakers are\nconstitutionally free to include or exclude pregnancy from the coverage of legislation such as\nthis on any reasonable basis, just as with respect to any other physical condition.\nThe lack of identity between the excluded disability and gender as such under this insurance\nprogram becomes clear upon the most cursory analysis. The program divides potential\nrecipients into two groups\xe2\x80\x94pregnant women and nonpregnant persons. While the first group\nis exclusively female, the second includes members of both sexes. The fiscal and actuarial\nbenefits of the program thus accrue to members of both sexes.\nIn Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981), at issue was whether California\xe2\x80\x99s\n\xe2\x80\x9cstatutory rape\xe2\x80\x9d law, which defined unlawful sexual intercourse as \xe2\x80\x9can act of sexual intercourse\naccomplished with a female not the wife of the perpetrator, where the female is under the age of 18\nyears\xe2\x80\x9d violated the Equal Protection Clause. The Court upheld the statute. Writing for the plurality,\nJustice Rehnquist acknowledged the applicability of intermediate scrutiny standard of Craig v. Boren,\nbut reasoned that the Equal Protection Clause does not \xe2\x80\x9cdemand that a statute necessarily apply\nequally to all persons\xe2\x80\x9d or require \xe2\x80\x9cthings which are different in fact . . . to be treated in law as though\nthey were the same\xe2\x80\x9d and that the Court has upheld \xe2\x80\x9cstatutes where the gender classification is\nnot invidious, but rather realistically reflects the fact that the sexes are not similarly situated in\ncertain circumstances.\xe2\x80\x9d Justice Rehnquist\xe2\x80\x99s opinion concluded that the state\xe2\x80\x99s interest in preventing\nteenage pregnancy was \xe2\x80\x9cstrong.\xe2\x80\x9d As to the means chosen \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x93 the criminalization of only males \xe2\x80\x93 \xe2\x80\x93 \xe2\x80\x93\nit reasoned:\nBecause virtually all of the significant harmful and inescapably identifiable consequences of\nteenage pregnancy fall on the young female, a legislature acts well within its authority when\nit elects to punish only the participant who, by nature, suffers few of the consequences of his\nconduct. It is hardly unreasonable for a legislature acting to protect minor females to exclude\nthem from punishment. Moreover, the risk of pregnancy itself constitutes a substantial\ndeterrence to young females. No similar natural sanctions deter males. A criminal sanction\nimposed solely on males thus serves to roughly \xe2\x80\x9cequalize\xe2\x80\x9d the deterrents on the sexes.\nConcurring in the opinion, Justice Blackmun stated that \xe2\x80\x9cI think too that it is only fair, with respect to\nthis particular petitioner, to point out that his partner, Sharon, appears not to have been an unwilling\nparticipant in at least the initial stages of the intimacies that took place the night of June 3, 1978.\xe2\x80\x9d\nBlackmun\xe2\x80\x99s footnote to that statement included testimony by Sharon from the trial transcript that\nincluded this:\n324 | Liberty, Equality, and Due Process: Third Edition\n\n\x0c\xe2\x80\x9cQ. You said that he hit you?\xe2\x80\x9d\n\xe2\x80\x9cA. Yeah.\xe2\x80\x9d\n\xe2\x80\x9cQ. How did he hit you?\xe2\x80\x9d\n\xe2\x80\x9cA. He slugged me in the face.\xe2\x80\x9d\n\xe2\x80\x9cQ. With what did he slug you?\xe2\x80\x9d\n\xe2\x80\x9cA. His fist.\xe2\x80\x9d\n\xe2\x80\x9cQ. Where abouts in the face?\xe2\x80\x9d\n\xe2\x80\x9cA. On my chin.\xe2\x80\x9d\n\xe2\x80\x9cQ. As a result of that, did you have any bruises or any kind of an injury?\xe2\x80\x9d\n\xe2\x80\x9cA. Yeah.\xe2\x80\x9d\n\xe2\x80\x9cQ. What happened?\xe2\x80\x9d\n\xe2\x80\x9cA. I had bruises.\xe2\x80\x9d\n\xe2\x80\x9cThe Court: Did he hit you one time or did he hit you more than once?\xe2\x80\x9d\n\xe2\x80\x9cThe Witness: He hit me about two or three times.\xe2\x80\x9d\nConsider how these different feminist theoretical perspectives are implicit in the Court\xe2\x80\x99s most recent\nsex/gender equal protection decision, Sessions v. Morales-Santana.\n\nSessions v. Morales-Santana\n582 U.S. ___ (2017)\nGINSBURG, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ROBERTS, C. J., AND KENNEDY, BREYER, SOTOMAYOR,\nAND KAGAN, JJ., JOINED. THOMAS, J., FILED AN OPINION CONCURRING IN THE JUDGMENT IN PART, IN WHICH ALITO, J.,\nJOINED. GORSUCH, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE.\nJUSTICE GINSBURG DELIVERED THE OPINION OF THE COURT.\nThis case concerns a gender-based differential in the law governing acquisition of U. S. citizenship\nby a child born abroad, when one parent is a U. S. citizen, the other, a citizen of another nation. The\nmain rule appears in 8 U. S. C. \xc2\xa7 1401(a)(7) (1958 ed.), now \xc2\xa7 1401(g) (2012 ed.). Applicable to married\ncouples, \xc2\xa7 1401(a)(7) requires a period of physical presence in the United States for the U. S.-citizen\nparent. The requirement, as initially prescribed, was ten years\xe2\x80\x99 physical presence prior to the child\xe2\x80\x99s\nbirth, \xc2\xa7 601(g) (1940 ed.); currently, the requirement is five years prebirth, \xc2\xa7 1401(g) (2012 ed.). That\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 325\n\n\x0cmain rule is rendered applicable to unwed U. S.-citizen fathers by \xc2\xa7 1409(a). Congress ordered an\nexception, however, for unwed U. S.-citizen mothers. Contained in \xc2\xa7 1409(c), the exception allows an\nunwed mother to transmit her citizenship to a child born abroad if she has lived in the United States\nfor just one year prior to the child\xe2\x80\x99s birth.\nThe respondent in this case, Luis Ram\xc3\xb3n Morales-Santana, was born in the Dominican Republic when\nhis father was just 20 days short of meeting \xc2\xa7 1401(a)(7)\xe2\x80\x99s physical-presence requirement. Opposing\nremoval to the Dominican Republic, Morales-Santana asserts that the equal protection principle\nimplicit in the Fifth Amendment entitles him to citizenship stature. We hold that the gender line\nCongress drew is incompatible with the requirement that the Government accord to all persons\n\xe2\x80\x9cthe equal protection of the laws.\xe2\x80\x9d Nevertheless, we cannot convert \xc2\xa7 1409(c)\xe2\x80\x99s exception for unwed\nmothers into the main rule displacing \xc2\xa7 1401(a)(7) (covering married couples) and \xc2\xa7 1409(a) (covering\nunwed fathers). We must therefore leave it to Congress to select, going forward, a physical-presence\nrequirement (ten years, one year, or some other period) uniformly applicable to all children born\nabroad with one U. S.-citizen and one alien parent, wed or unwed. In the interim, the Government\nmust ensure that the laws in question are administered in a manner free from gender-based\ndiscrimination.\n\nI\nA\nWe first describe in greater detail the regime Congress constructed. * * * * {omitted}\n\nB\nRespondent Luis Ram\xc3\xb3n Morales-Santana moved to the United States at age 13, and has resided in\nthis country most of his life. Now facing deportation, he asserts U. S. citizenship at birth based on the\ncitizenship of his biological father, Jos\xc3\xa9 Morales, who accepted parental responsibility and included\nMorales-Santana in his household.\nJos\xc3\xa9 Morales was born in Gu\xc3\xa1nica, Puerto Rico, on March 19, 1900. Puerto Rico was then, as it is now,\npart of the United States, and Jos\xc3\xa9 became a U. S. citizen. After living in Puerto Rico for nearly two\ndecades, Jos\xc3\xa9 left his childhood home on February 27, 1919, 20 days short of his 19th birthday, therefore\nfailing to satisfy \xc2\xa7 1401(a)(7)\xe2\x80\x99s requirement of five years\xe2\x80\x99 physical presence after age 14. He did so to\ntake up employment as a builder-mechanic for a U. S. company in the then-U. S.-occupied Dominican\nRepublic.\nBy 1959, Jos\xc3\xa9 attested in a June 21, 1971 affidavit presented to the U. S. Embassy in the Dominican\nRepublic, he was living with Yrma Santana Montilla, a Dominican woman he would eventually marry.\nIn 1962, Yrma gave birth to their child, respondent Luis Morales-Santana. While the record before us\nreveals little about Morales-Santana\xe2\x80\x99s childhood, the Dominican archives disclose that Yrma and Jos\xc3\xa9\n326 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cmarried in 1970, and that Jos\xc3\xa9 was then added to Morales-Santana\xe2\x80\x99s birth certificate as his father. Jos\xc3\xa9\nalso related in the same affidavit that he was then saving money \xe2\x80\x9cfor the susten[ance] of [his] family\xe2\x80\x9d in\nanticipation of undergoing surgery in Puerto Rico, where members of his family still resided. In 1975,\nwhen Morales-Santana was 13, he moved to Puerto Rico, and by 1976, the year his father died, he was\nattending public school in the Bronx, a New York City borough.\n\nC\nIn 2000, the Government placed Morales-Santana in removal proceedings based on several\nconvictions for offenses under New York State Penal Law, all of them rendered on May 17, 1995.\nMorales-Santana ranked as an alien despite the many years he lived in the United States, because,\nat the time of his birth, his father did not satisfy the requirement of five years\xe2\x80\x99 physical presence\nafter age 14. An immigration judge rejected Morales-Santana\xe2\x80\x99s claim to citizenship derived from the\nU. S. citizenship of his father, and ordered Morales-Santana\xe2\x80\x99s removal to the Dominican Republic.\nIn 2010, Morales-Santana moved to reopen the proceedings, asserting that the Government\xe2\x80\x99s refusal\nto recognize that he derived citizenship from his U. S.-citizen father violated the Constitution\xe2\x80\x99s\nequal protection guarantee. The Board of Immigration Appeals (BIA) denied the motion. The United\nStates Court of Appeals for the Second Circuit reversed the BIA\xe2\x80\x99s decision. Relying on this Court\xe2\x80\x99s\npost-1970 construction of the equal protection principle as it bears on gender-based classifications,\nthe court held unconstitutional the differential treatment of unwed mothers and fathers. To cure\nthe constitutional flaw, the court further held that Morales-Santana derived citizenship through his\nfather, just as he would were his mother the U. S. citizen. In so ruling, the Second Circuit declined to\nfollow the conflicting decision of the Ninth Circuit in United States v. Flores-Villar (2008). We granted\ncertiorari in Flores-Villar, but ultimately affirmed by an equally divided Court. Flores-Villar v. United\nStates (2011) (per curiam). Taking up Morales-Santana\xe2\x80\x99s request for review, we consider the matter\nanew.\n\nII\nBecause \xc2\xa7 1409 treats sons and daughters alike, Morales-Santana does not suffer discrimination on\nthe basis of his gender. He complains, instead, of gender-based discrimination against his father, who\nwas unwed at the time of Morales-Santana\xe2\x80\x99s birth and was not accorded the right an unwed U. S.citizen mother would have to transmit citizenship to her child. Although the Government does not\ncontend otherwise, we briefly explain why Morales-Santana may seek to vindicate his father\xe2\x80\x99s right\nto the equal protection of the laws. * * * * Morales-Santana is thus the \xe2\x80\x9cobvious claimant,\xe2\x80\x9d the \xe2\x80\x9cbest\navailable proponent,\xe2\x80\x9d of his father\xe2\x80\x99s right to equal protection.\n\nIII\nSections 1401 and 1409, we note, date from an era when the lawbooks of our Nation were rife with\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 327\n\n\x0coverbroad generalizations about the way men and women are. See, e.g., Hoyt v. Florida (1961) (women\nare the \xe2\x80\x9ccenter of home and family life,\xe2\x80\x9d therefore they can be \xe2\x80\x9crelieved from the civic duty of jury\nservice\xe2\x80\x9d); Goesaert v. Cleary (1948) (States may draw \xe2\x80\x9ca sharp line between the sexes\xe2\x80\x9d). Today, laws\nof this kind are subject to review under the heightened scrutiny that now attends \xe2\x80\x9call gender-based\nclassifications.\xe2\x80\x9d J. E. B. v. Alabama ex rel. T. B. (1994); United States v. Virginia, 518 U. S. 515 \xe2\x80\x93556 (1996)\n(state-maintained military academy may not deny admission to qualified women).\nLaws granting or denying benefits \xe2\x80\x9con the basis of the sex of the qualifying parent,\xe2\x80\x9d our post-1970\ndecisions affirm, differentiate on the basis of gender, and therefore attract heightened review under\nthe Constitution\xe2\x80\x99s equal protection guarantee. Califano v. Westcott, (1979) (holding unconstitutional\nprovision of unemployed-parent benefits exclusively to fathers); Califano v. Goldfarb (1977) (plurality\nopinion) (holding unconstitutional a Social Security classification that denied widowers survivors\xe2\x80\x99\nbenefits available to widows); Weinberger v. Wiesenfeld (1975) (holding unconstitutional a Social\nSecurity classification that excluded fathers from receipt of child-in-care benefits available to\nmothers); Frontiero v. Richardson (1973) (plurality opinion) (holding unconstitutional exclusion of\nmarried female officers in the military from benefits automatically accorded married male officers);\ncf. Reed v. Reed (1971) (holding unconstitutional a probate-code preference for a father over a mother\nas administrator of a deceased child\xe2\x80\x99s estate).\nPrescribing one rule for mothers, another for fathers, \xc2\xa7 1409 is of the same genre as the classifications\nwe declared unconstitutional in Reed, Frontiero, Wiesenfeld, Goldfarb, and Westcott. As in those cases,\nheightened scrutiny is in order. Successful defense of legislation that differentiates on the basis of\ngender, we have reiterated, requires an \xe2\x80\x9cexceedingly persuasive justification.\xe2\x80\x9d Virginia.\n\nA\nThe defender of legislation that differentiates on the basis of gender must show \xe2\x80\x9cat least that the\n[challenged] classification serves important governmental objectives and that the discriminatory\nmeans employed are substantially related to the achievement of those objectives.\xe2\x80\x9d Virginia (quoting\nMississippi Univ. for Women v. Hogan (1982)). Moreover, the classification must substantially serve an\nimportant governmental interest today, for \xe2\x80\x9cin interpreting the [e]qual [p]rotection [guarantee], [we\nhave] recognized that new insights and societal understandings can reveal unjustified inequality . . .\nthat once passed unnoticed and unchallenged.\xe2\x80\x9d Obergefell v. Hodges (2015). Here, the Government has\nsupplied no \xe2\x80\x9cexceedingly persuasive justification,\xe2\x80\x9d for \xc2\xa7 1409(a) and (c)\xe2\x80\x99s \xe2\x80\x9cgender-based\xe2\x80\x9d and \xe2\x80\x9cgenderbiased\xe2\x80\x9d disparity.\n\n1\nHistory reveals what lurks behind \xc2\xa7 1409. Enacted in the Nationality Act of 1940, \xc2\xa7 1409 ended a\ncentury and a half of congressional silence on the citizenship of children born abroad to unwed\nparents. During this era, two once habitual, but now untenable, assumptions pervaded our Nation\xe2\x80\x99s\n\n328 | Liberty, Equality, and Due Process: Third Edition\n\n\x0ccitizenship laws and underpinned judicial and administrative rulings: In marriage, husband is\ndominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child.\nUnder the once entrenched principle of male dominance in marriage, the husband controlled both\nwife and child. \xe2\x80\x9c[D]ominance [of] the husband,\xe2\x80\x9d this Court observed in 1915, \xe2\x80\x9cis an ancient principle\nof our jurisprudence.\xe2\x80\x9d Mackenzie v. Hare (1915). Through the early 20th century, a male citizen\nautomatically conferred U. S. citizenship on his alien wife. A female citizen, however, was incapable of\nconferring citizenship on her husband; indeed, she was subject to expatriation if she married an alien.\nThe family of a citizen or a lawfully admitted permanent resident enjoyed statutory exemptions from\nentry requirements, but only if the citizen or resident was male. And from 1790 until 1934, the foreignborn child of a married couple gained U. S. citizenship only through the father.\nFor unwed parents, the father-controls tradition never held sway. Instead, the mother was regarded\nas the child\xe2\x80\x99s natural and sole guardian. At common law, the mother, and only the mother, was \xe2\x80\x9cbound\nto maintain [a nonmarital child] as its natural guardian.\xe2\x80\x9d 2 J. Kent, Commentaries on American Law (8th\ned. 1854). In line with that understanding, in the early 20th century, the State Department sometimes\npermitted unwed mothers to pass citizenship to their children, despite the absence of any statutory\nauthority for the practice.\nIn the 1940 Act, Congress discarded the father-controls assumption concerning married parents,\nbut codified the mother-as-sole-guardian perception regarding unmarried parents. The Roosevelt\nadministration, which proposed \xc2\xa7 1409, explained: \xe2\x80\x9c[T]he mother [of a nonmarital child] stands in the\nplace of the father . . . [,] has a right to the custody and control of such a child as against the putative\nfather, and is bound to maintain it as its natural guardian.\xe2\x80\x9d\nThis unwed-mother-as-natural-guardian notion renders \xc2\xa7 1409\xe2\x80\x99s gender-based residency rules\nunderstandable. Fearing that a foreign-born child could turn out \xe2\x80\x9cmore alien than American in\ncharacter,\xe2\x80\x9d the administration believed that a citizen parent with lengthy ties to the United States\nwould counteract the influence of the alien parent. Concern about the attachment of foreign-born\nchildren to the United States explains the treatment of unwed citizen fathers, who, according to the\nfamiliar stereotype, would care little about, and have scant contact with, their nonmarital children.\nFor unwed citizen mothers, however, there was no need for a prolonged residency prophylactic: The\nalien father, who might transmit foreign ways, was presumptively out of the picture.\n\n2\nFor close to a half century, as earlier observed, this Court has viewed with suspicion laws that rely\non \xe2\x80\x9coverbroad generalizations about the different talents, capacities, or preferences of males and\nfemales.\xe2\x80\x9d In particular, we have recognized that if a \xe2\x80\x9cstatutory objective is to exclude or \xe2\x80\x98protect\xe2\x80\x99\nmembers of one gender\xe2\x80\x9d in reliance on \xe2\x80\x9cfixed notions concerning [that gender\xe2\x80\x99s] roles and abilities,\xe2\x80\x9d\nthe \xe2\x80\x9cobjective itself is illegitimate.\xe2\x80\x9d\nIn accord with this eventual understanding, the Court has held that no \xe2\x80\x9cimportant [governmental]\ninterest\xe2\x80\x9d is served by laws grounded, as \xc2\xa7 1409(a) and (c) are, in the obsolescing view that \xe2\x80\x9cunwed\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 329\n\n\x0cfathers [are] invariably less qualified and entitled than mothers\xe2\x80\x9d to take responsibility for nonmarital\nchildren. Overbroad generalizations of that order, the Court has come to comprehend, have a\nconstraining impact, descriptive though they may be of the way many people still order their lives.\nLaws according or denying benefits in reliance on \xe2\x80\x9c[s]tereotypes about women\xe2\x80\x99s domestic roles,\xe2\x80\x9d\nthe Court has observed, may \xe2\x80\x9ccreat[e] a self-fulfilling cycle of discrimination that force[s] women to\ncontinue to assume the role of primary family caregiver.\xe2\x80\x9d Correspondingly, such laws may disserve\nmen who exercise responsibility for raising their children. In light of the equal protection\njurisprudence this Court has developed since 1971, \xc2\xa7 1409(a) and (c)\xe2\x80\x99s discrete duration-of-residence\nrequirements for unwed mothers and fathers who have accepted parental responsibility is stunningly\nanachronistic.\n\nB\nIn urging this Court nevertheless to reject Morales-Santana\xe2\x80\x99s equal protection plea, the Government\ncites three decisions of this Court: Fiallo v. Bell (1977), Miller v. Albright (1998) and Nguyen v. INS (2001).\nNone controls this case.\nThe 1952 Act provision at issue in Fiallo gave special immigration preferences to alien children of\ncitizen (or lawful-permanent-resident) mothers, and to alien unwed mothers of citizen (or lawfulpermanent-resident) children. Unwed fathers and their children, asserting their right to equal\nprotection, sought the same preferences. Applying minimal scrutiny (rational-basis review), the Court\nupheld the provision, relying on Congress\xe2\x80\x99 \xe2\x80\x9cexceptionally broad power\xe2\x80\x9d to admit or exclude aliens.\nThis case, however, involves no entry preference for aliens. Morales-Santana claims he is, and since\nbirth has been, a U. S. citizen. Examining a claim of that order, the Court has not disclaimed, as it did\nin Fiallo, the application of an exacting standard of review.\nThe provision challenged in Miller and Nguyen as violative of equal protection requires unwed U. S.citizen fathers, but not mothers, to formally acknowledge parenthood of their foreign-born children\nin order to transmit their U. S. citizenship to those children. After Miller produced no opinion for\nthe Court, we took up the issue anew in Nguyen. There, the Court held that imposing a paternalacknowledgment requirement on fathers was a justifiable, easily met means of ensuring the existence\nof a biological parent-child relationship, which the mother establishes by giving birth. MoralesSantana\xe2\x80\x99s challenge does not renew the contest over \xc2\xa7 1409\xe2\x80\x99s paternal-acknowledgment requirement\n(whether the current version or that in effect in 1970), and the Government does not dispute that\nMorales-Santana\xe2\x80\x99s father, by marrying Morales-Santana\xe2\x80\x99s mother, satisfied that requirement.\nUnlike the paternal-acknowledgment requirement at issue in Nguyen and Miller, the physicalpresence requirements now before us relate solely to the duration of the parent\xe2\x80\x99s prebirth residency\nin the United States, not to the parent\xe2\x80\x99s filial tie to the child. As the Court of Appeals observed in\nthis case, a man needs no more time in the United States than a woman \xe2\x80\x9cin order to have assimilated\ncitizenship-related values to transmit to [his]child.\xe2\x80\x9d And unlike Nguyen\xe2\x80\x99s parental-acknowledgment\nrequirement, \xc2\xa7 1409(a)\xe2\x80\x99s age-calibrated physical-presence requirements cannot fairly be described as\n\xe2\x80\x9cminimal.\xe2\x80\x9d\n330 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cC\nNotwithstanding \xc2\xa7 1409(a) and (c)\xe2\x80\x99s provenance in traditional notions of the way women and men are,\nthe Government maintains that the statute serves two important objectives: (1) ensuring a connection\nbetween the child to become a citizen and the United States and (2) preventing \xe2\x80\x9cstatelessness,\xe2\x80\x9d i.e.,\na child\xe2\x80\x99s possession of no citizenship at all. Even indulging the assumption that Congress intended\n\xc2\xa7 1409 to serve these interests, neither rationale survives heightened scrutiny.\n\n1\nWe take up first the Government\xe2\x80\x99s assertion that \xc2\xa7 1409(a) and (c)\xe2\x80\x99s gender-based differential ensures\nthat a child born abroad has a connection to the United States of sufficient strength to warrant\nconferral of citizenship at birth. The Government does not contend, nor could it, that unmarried\nmen take more time to absorb U. S. values than unmarried women do. Instead, it presents a novel\nargument, one it did not advance in Flores-Villar.\nAn unwed mother, the Government urges, is the child\xe2\x80\x99s only \xe2\x80\x9clegally recognized\xe2\x80\x9d parent at the time\nof childbirth. An unwed citizen father enters the scene later, as a second parent. A longer physical\nconnection to the United States is warranted for the unwed father, the Government maintains,\nbecause of the \xe2\x80\x9ccompeting national influence\xe2\x80\x9d of the alien mother. Congress, the Government\nsuggests, designed the statute to bracket an unwed U. S.-citizen mother with a married couple in\nwhich both parents are U. S. citizens, and to align an unwed U. S.-citizen father with a married couple,\none spouse a citizen, the other, an alien.\nUnderlying this apparent design is the assumption that the alien father of a nonmarital child born\nabroad to a U. S.-citizen mother will not accept parental responsibility. For an actual affiliation\nbetween alien father and nonmarital child would create the \xe2\x80\x9ccompeting national influence\xe2\x80\x9d that,\naccording to the Government, justifies imposing on unwed U. S.-citizen fathers, but not unwed U.\nS.-citizen mothers, lengthy physical-presence requirements. Hardly gender neutral, that assumption\nconforms to the long-held view that unwed fathers care little about, indeed are strangers to, their\nchildren. Lump characterization of that kind, however, no longer passes equal protection inspection.\nAccepting, arguendo, that Congress intended the diverse physical-presence prescriptions to serve an\ninterest in ensuring a connection between the foreign-born nonmarital child and the United States,\nthe gender-based means scarcely serve the posited end. The scheme permits the transmission of\ncitizenship to children who have no tie to the United States so long as their mother was a U. S. citizen\ncontinuously present in the United States for one year at any point in her life prior to the child\xe2\x80\x99s birth.\nThe transmission holds even if the mother marries the child\xe2\x80\x99s alien father immediately after the child\xe2\x80\x99s\nbirth and never returns with the child to the United States. At the same time, the legislation precludes\ncitizenship transmission by a U. S.-citizen father who falls a few days short of meeting \xc2\xa7 1401(a)(7)\xe2\x80\x99s\nlonger physical-presence requirements, even if the father acknowledges paternity on the day of the\nchild\xe2\x80\x99s birth and raises the child in the United States. One cannot see in this driven-by-gender scheme\nthe close means-end fit required to survive heightened scrutiny.\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 331\n\n\x0c2\nThe Government maintains that Congress established the gender-based residency differential in\n\xc2\xa7 1409(a) and (c) to reduce the risk that a foreign-born child of a U. S. citizen would be born stateless.\nThis risk, according to the Government, was substantially greater for the foreign-born child of an\nunwed U. S.-citizen mother than it was for the foreign-born child of an unwed U. S.-citizen father. But\nthere is little reason to believe that a statelessness concern prompted the diverse physical-presence\nrequirements. Nor has the Government shown that the risk of statelessness disproportionately\nendangered the children of unwed mothers.\nAs the Court of Appeals pointed out, with one exception, nothing in the congressional hearings and\nreports on the 1940 and 1952 Acts \xe2\x80\x9crefer[s] to the problem of statelessness for children born abroad.\xe2\x80\x9d\nReducing the incidence of statelessness was the express goal of other sections of the 1940 Act. The\njustification for \xc2\xa7 1409\xe2\x80\x99s gender-based dichotomy, however, was not the child\xe2\x80\x99s plight, it was the\nmother\xe2\x80\x99s role as the \xe2\x80\x9cnatural guardian\xe2\x80\x9d of a nonmarital child. It will not do to \xe2\x80\x9chypothesiz[e] or inven[t]\xe2\x80\x9d\ngovernmental purposes for gender classifications \xe2\x80\x9cpost hoc in response to litigation.\xe2\x80\x9d Virginia.\nInfecting the Government\xe2\x80\x99s risk-of-statelessness argument is an assumption without foundation.\n\xe2\x80\x9c[F]oreign laws that would put the child of the U. S.-citizen mother at risk of statelessness (by not\nproviding for the child to acquire the father\xe2\x80\x99s citizenship at birth),\xe2\x80\x9d the Government asserts, \xe2\x80\x9cwould\nprotect the child of the U. S.-citizen father against statelessness by providing that the child would take\nhis mother\xe2\x80\x99s citizenship.\xe2\x80\x9d The Government, however, neglected to expose this supposed \xe2\x80\x9cprotection\xe2\x80\x9d\nto a reality check. Had it done so, it would have recognized the formidable impediments placed by\nforeign laws on an unwed mother\xe2\x80\x99s transmission of citizenship to her child.\nExperts who have studied the issue report that, at the time relevant here, in \xe2\x80\x9cat least thirty countries,\xe2\x80\x9d\ncitizen mothers generally could not transmit their citizenship to nonmarital children born within\nthe mother\xe2\x80\x99s country. \xe2\x80\x9c[A]s many as forty-five countries,\xe2\x80\x9d they further report, \xe2\x80\x9cdid not permit their\nfemale citizens to assign nationality to a nonmarital child born outside the subject country with a\nforeign father.\xe2\x80\x9d In still other countries, they also observed, there was no legislation in point, leaving\nthe nationality of nonmarital children uncertain. Taking account of the foreign laws actually in force,\nthese experts concluded, \xe2\x80\x9cthe risk of parenting stateless children abroad was, as of [1940 and 1952],\nand remains today, substantial for unmarried U. S. fathers, a risk perhaps greater than that for\nunmarried U. S. mothers.\xe2\x80\x9d One can hardly characterize as gender neutral a scheme allegedly attending\nto the risk of statelessness for children of unwed U. S.-citizen mothers while ignoring the same risk\nfor children of unwed U. S.-citizen fathers.\nIn 2014, the United Nations High Commissioner for Refugees (UNHCR) undertook a ten-year project\nto eliminate statelessness by 2024. Cognizant that discrimination against either mothers or fathers in\ncitizenship and nationality laws is a major cause of statelessness, the Commissioner has made a key\ncomponent of its project the elimination of gender discrimination in such laws. In this light, we cannot\ncountenance risk of statelessness as a reason to uphold, rather than strike out, differential treatment\nof unmarried women and men with regard to transmission of citizenship to their children.\nIn sum, the Government has advanced no \xe2\x80\x9cexceedingly persuasive\xe2\x80\x9d justification for \xc2\xa7 1409(a) and\n332 | Liberty, Equality, and Due Process: Third Edition\n\n\x0c(c)\xe2\x80\x99s gender-specific residency and age criteria. Those disparate criteria, we hold, cannot withstand\ninspection under a Constitution that requires the Government to respect the equal dignity and stature\nof its male and female citizens.\n\nIV\nWhile the equal protection infirmity in retaining a longer physical-presence requirement for unwed\nfathers than for unwed mothers is clear, this Court is not equipped to grant the relief Morales-Santana\nseeks, i.e., extending to his father (and, derivatively, to him) the benefit of the one-year physicalpresence term \xc2\xa7 1409(c) reserves for unwed mothers.\nThere are \xe2\x80\x9ctwo remedial alternatives,\xe2\x80\x9d our decisions instruct, when a statute benefits one class (in this\ncase, unwed mothers and their children), as \xc2\xa7 1409(c) does, and excludes another from the benefit\n(here, unwed fathers and their children). \xe2\x80\x9c[A] court may either declare [the statute] a nullity and order\nthat its benefits not extend to the class that the legislature intended to benefit, or it may extend the\ncoverage of the statute to include those who are aggrieved by exclusion.\xe2\x80\x9d \xe2\x80\x9c[W]hen the \xe2\x80\x98right invoked is\nthat to equal treatment,\xe2\x80\x99 the appropriate remedy is a mandate of equal treatment, a result that can be\naccomplished by withdrawal of benefits from the favored class as well as by extension of benefits to\nthe excluded class.\xe2\x80\x9d \xe2\x80\x9cHow equality is accomplished . . . is a matter on which the Constitution is silent.\xe2\x80\x9d\nThe choice between these outcomes is governed by the legislature\xe2\x80\x99s intent, as revealed by the statute\nat hand.\nOrdinarily, we have reiterated, \xe2\x80\x9cextension, rather than nullification, is the proper course.\xe2\x80\x9d Illustratively,\nin a series of cases involving federal financial assistance benefits, the Court struck discriminatory\nexceptions denying benefits to discrete groups, which meant benefits previously denied were\nextended. See e.g., * * * * Department of Agriculture v. Moreno (1973) (food stamps); Frontiero (plurality\nopinion) (military spousal benefits). Here, however, the discriminatory exception consists of favorable\ntreatment for a discrete group (a shorter physical-presence requirement for unwed U. S.-citizen\nmothers giving birth abroad). Following the same approach as in those benefits cases\xe2\x80\x94striking the\ndiscriminatory exception\xe2\x80\x94leads here to extending the general rule of longer physical-presence\nrequirements to cover the previously favored group. * * * *\nThe residual policy here, the longer physical-presence requirement stated in \xc2\xa7\xc2\xa7 1401(a)(7) and 1409,\nevidences Congress\xe2\x80\x99 recognition of \xe2\x80\x9cthe importance of residence in this country as the talisman of\ndedicated attachment.\xe2\x80\x9d And the potential for \xe2\x80\x9cdisruption of the statutory scheme\xe2\x80\x9d is large. For if\n\xc2\xa7 1409(c)\xe2\x80\x99s one-year dispensation were extended to unwed citizen fathers, would it not be irrational\nto retain the longer term when the U. S.-citizen parent is married? Disadvantageous treatment of\nmarital children in comparison to nonmarital children is scarcely a purpose one can sensibly attribute\nto Congress.\nAlthough extension of benefits is customary in federal benefit cases, all indicators in this case point\nin the opposite direction. Put to the choice, Congress, we believe, would have abrogated \xc2\xa7 1409(c)\xe2\x80\x99s\nexception, preferring preservation of the general rule.\n\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 333\n\n\x0cV\nThe gender-based distinction infecting \xc2\xa7\xc2\xa7 1401(a)(7) and 1409(a) and (c), we hold, violates the equal\nprotection principle, as the Court of Appeals correctly ruled. For the reasons stated, however, we\nmust adopt the remedial course Congress likely would have chosen \xe2\x80\x9chad it been apprised of the\nconstitutional infirmity.\xe2\x80\x9d Although the preferred rule in the typical case is to extend favorable\ntreatment, this is hardly the typical case. Extension here would render the special treatment Congress\nprescribed in \xc2\xa7 1409(c), the one-year physical-presence requirement for U. S.-citizen mothers, the\ngeneral rule, no longer an exception. Section 1401(a)(7)\xe2\x80\x99s longer physical-presence requirement,\napplicable to a substantial majority of children born abroad to one U. S.-citizen parent and one\nforeign-citizen parent, therefore, must hold sway. Going forward, Congress may address the issue\nand settle on a uniform prescription that neither favors nor disadvantages any person on the basis of\ngender. In the interim, as the Government suggests, \xc2\xa7 1401(a)(7)\xe2\x80\x99s now-five-year requirement should\napply, prospectively, to children born to unwed U. S.-citizen mothers.\nThe judgment of the Court of Appeals for the Second Circuit is affirmed in part and reversed in part,\nand the case is remanded for further proceedings consistent with this opinion.\nIt is so ordered.\nJUSTICE GORSUCH TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE.\nJUSTICE THOMAS, WITH WHOM JUSTICE ALITO JOINS, CONCURRING IN THE JUDGMENT IN PART. {GIVEN THE\nCONCLUSION THAT NO RELIEF WAS WARRANTED, THERE WAS NO NEED TO FIND THE STATUTE UNCONSTITUTIONAL.}\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=37#h5p-78\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=37#h5p-79\n\n334 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=37#h5p-80\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=37#h5p-81\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=37#h5p-82\n\nNotes\n1. Be prepared to articulate the standard of review for Equal Protection classifications based on sex/\ngender including the United States v. Virginia (VMI) language.\n2. In Morales-Santana, the Court agreed with the challenger\xe2\x80\x99s claim that the statute is\nunconstitutional and yet the challenger does not prevail. Why not?\n3. Reconsidering the standard of review for sex/gender and anticipating other classifications, review\nCarolene Products footnote 4 and the evolving criteria for determining whether or not a classification\nis suspect (or quasi-suspect) as a prerequisite to determining the applicable standard of review.\n\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 1 | 335\n\n\x0cCHAPTER FIVE: Nonracial Classifications\nand Equal Protection - Part 2\nIII. Other Classifications\nA. Illegitimacy, Age, and Language\nNote: Illegitimacy\nIn Sessions v. Morales-Santana, there is also an issue of \xe2\x80\x9cillegitimacy,\xe2\x80\x9d or \xe2\x80\x9cnon-marital children,\xe2\x80\x9d the\nstatus of being born to an unmarried woman. At times, such classifications can also be sex/gender\nclassifications, as in Morales-Santana, because the classification also involves treating unmarried\nmothers differently than unmarried fathers with regard to the child. Indeed, there is a constellation\nof cases often known as the \xe2\x80\x9cunmarried father\xe2\x80\x9d cases which involve parental rights and obligations\nof fathers. For example, in Lehr v. Robertson, 463 U.S. 248 (1983), the Court held that an unmarried\nbiological father who did not acknowledge the child was not denied equal protection (or due process)\nwhen the mother\xe2\x80\x99s subsequent husband adopted the child.\nOther cases involve a claim by an \xe2\x80\x9cillegitimate\xe2\x80\x9d child more directly. For example, in Levy v. Louisiana,\n391 U.S. 68 (1968), the Court in a very brief opinion held unconstitutional the exclusion of illegitimate\nchildren from the right to bring an action for their mother\xe2\x80\x99s wrongful death. The state courts\nhad interpreted \xe2\x80\x9cchild\xe2\x80\x9d in the wrongful death statute to mean \xe2\x80\x9clegitimate child,\xe2\x80\x9d and the denial to\nillegitimate children of \xe2\x80\x9cthe right to recover\xe2\x80\x9d justified as \xe2\x80\x9cbased on morals and general welfare because\nit discourages bringing children into the world out of wedlock.\xe2\x80\x9d Justice Douglas, writing for the Court,\nfirst emphasized that \xe2\x80\x9cillegitimate\xe2\x80\x9d children are persons within the Equal Protection Clause, then\nwrote:\nWhy should the illegitimate child be denied rights merely because of his birth out of wedlock?\nHe certainly is subject to all the responsibilities of a citizen, including the payment of taxes\nand conscription under the Selective Service Act. How, under our constitutional regime, can\nhe be denied correlative rights which other citizens enjoy?\nLegitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted\non the mother. These children, though illegitimate, were dependent on her; she cared for them\nand nurtured them; they were indeed hers in the biological and in the spiritual sense; in her\ndeath, they suffered wrong in the sense that any dependent would.\nWe conclude that it is invidious to discriminate against them when no action, conduct, or\ndemeanor of theirs is possibly relevant to the harm that was done the mother.\n336 | CHAPTER FIVE: Nonracial Classifications and Equal\nProtection - Part 2\n\n\x0c{footnotes omitted}\nIn Clark v. Jeter, 486 U.S. 456 (1988), in an opinion by Justice O\xe2\x80\x99Connor, the Court explicitly stated that\nclassifications based on illegitimacy generally merit intermediate scrutiny:\nIn considering whether state legislation violates the Equal Protection Clause of the Fourteenth\nAmendment, we apply different levels of scrutiny to different types of classifications. At a\nminimum, a statutory classification must be rationally related to a legitimate governmental\npurpose. Classifications based on race or national origin and classifications affecting\nfundamental rights are given the most exacting scrutiny. Between these extremes of rational\nbasis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been\napplied to discriminatory classifications based on sex or illegitimacy.\nTo withstand intermediate scrutiny, a statutory classification must be substantially related to\nan important governmental objective. Consequently, we have invalidated classifications that\nburden illegitimate children for the sake of punishing the illicit relations of their parents,\nbecause \xe2\x80\x9cvisiting this condemnation on the head of an infant is illogical and unjust.\xe2\x80\x9d\n\nNote: Age\nGenerally, the Court has decided that age classifications merit only rational basis review.\nRegarding younger people, the Court in City of Dallas v. Stanglin, 490 U.S. 19 (1989), applied rational\nbasis review to uphold the constitutionality of an ordinance that licensed a class of dancehalls\nthat restricted admission to persons between the ages of 14 and 18 and limited their hours of\noperation. Without much analysis, the opinion by Chief Justice Rehnquist for the Court assumed that\nteenagers were not a suspect class (the major issue was whether there was a First Amendment right\nof association). Protecting the 14-18 year olds from \xe2\x80\x9cthe corrupting influences of older teenagers and\nyoung adults,\xe2\x80\x9d was a legitimate interest and the means chosen was sufficiently rational.\nAs to older people, the Court in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976),\nupheld a mandatory retirement age of 50 for police officers. In its per curiam opinion considering\nwhat level of scrutiny should apply, the Court stated:\nNor does the class of uniformed state police officers over 50 constitute a suspect class\nfor purposes of equal protection analysis. {We have} observed that a suspect class is one\n\xe2\x80\x9csaddled with such disabilities, or subjected to such a history of purposeful unequal treatment,\nor relegated to such a position of political powerlessness as to command extraordinary\nprotection from the majoritarian political process.\xe2\x80\x9d\nWhile the treatment of the aged in this Nation has not been wholly free of discrimination, such\npersons, unlike, say, those who have been discriminated against on the basis of race or national\norigin, have not experienced a \xe2\x80\x9chistory of purposeful unequal treatment\xe2\x80\x9d or been subjected\nto unique disabilities on the basis of stereotyped characteristics not truly indicative of their\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2 | 337\n\n\x0cabilities. The class subject to the compulsory retirement feature of the Massachusetts statute\nconsists of uniformed state police officers over the age of 50. It cannot be said to discriminate\nonly against the elderly. Rather, it draws the line at a certain age in middle life. But even old\nage does not define a \xe2\x80\x9cdiscrete and insular\xe2\x80\x9d group, United States v. Carolene Products Co., n. 4\n(1938), in need of \xe2\x80\x9cextraordinary protection from the majoritarian political process.\xe2\x80\x9d Instead, it\nmarks a stage that each of us will reach if we live out our normal span. Even if the statute could\nbe said to impose a penalty upon a class defined as the aged, it would not impose a distinction\nsufficiently akin to those classifications that we have found suspect to call for strict judicial\nscrutiny.\nUnder the circumstances, it is unnecessary to subject the State\xe2\x80\x99s resolution of competing\ninterests in this case to the degree of critical examination that our cases under the Equal\nProtection Clause recently have characterized as \xe2\x80\x9cstrict judicial scrutiny.\xe2\x80\x9d\nApplying rational basis, the Court found that the statute \xe2\x80\x9cclearly meets\xe2\x80\x9d the standard. The Court\narticulated the government interest as seeking to \xe2\x80\x9cprotect the public by assuring physical\npreparedness of its uniformed police.\xe2\x80\x9d It found that the \xe2\x80\x9cmandatory retirement at 50 serves to remove\nfrom police service those whose fitness for uniformed work presumptively has diminished with\nage.\xe2\x80\x9d The Court did acknowledge that individualized testing might be a better method, but that did\nnot mean it was irrational. The Court added: \xe2\x80\x9cWe do not make light of the substantial economic\nand psychological effects premature and compulsory retirement can have on an individual; nor do\nwe denigrate the ability of elderly citizens to continue to contribute to society. The problems of\nretirement have been well documented and are beyond serious dispute.\xe2\x80\x9d\n\nHernandez v. New York\n500 U.S. 352 (1991)\nKENNEDY, J., ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN OPINION, IN WHICH REHNQUIST, C.J., AND\nWHITE AND SOUTER, JJ., JOINED. O\xe2\x80\x99CONNOR, J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH SCALIA,\nJ., JOINED. BLACKMUN, J., FILED A DISSENTING OPINION. STEVENS, J., FILED A DISSENTING OPINION, IN WHICH MARSHALL,\nJ., JOINED.\nJUSTICE KENNEDY ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN OPINION, IN WHICH THE CHIEF\nJUSTICE, JUSTICE WHITE AND JUSTICE SOUTER JOIN.\nPetitioner Dionisio Hernandez asks us to review the New York state courts\xe2\x80\x99 rejection of his claim that\nthe prosecutor in his criminal trial exercised peremptory challenges to exclude Latinos from the jury\nby reason of their ethnicity. If true, the prosecutor\xe2\x80\x99s discriminatory use of peremptory strikes would\nviolate the Equal Protection Clause as interpreted by our decision in Batson v. Kentucky (1986). We\nmust determine whether the prosecutor offered a race-neutral basis for challenging Latino potential\njurors and, if so, whether the state courts\xe2\x80\x99 decision to accept the prosecutor\xe2\x80\x99s explanation should be\nsustained.\n338 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cPetitioner and respondent both use the term \xe2\x80\x9cLatino\xe2\x80\x9d in their briefs to this Court. The amicus brief\nemploys instead the term \xe2\x80\x9cHispanic,\xe2\x80\x9d and the parties referred to the excluded jurors by that term\nin the trial court. Both words appear in the state-court opinions. No attempt has been made at a\ndistinction by the parties, and we make no attempt to distinguish the terms in this opinion. We will\nrefer to the excluded venirepersons as Latinos in deference to the terminology preferred by the\nparties before the Court.\n\nI\nThe case comes to us on direct review of petitioner\xe2\x80\x99s convictions on two counts of attempted murder\nand two counts of criminal possession of a weapon. On a Brooklyn street, petitioner fired several shots\nat Charlene Calloway and her mother, Ada Saline. Calloway suffered three gunshot wounds. Petitioner\nmissed Saline, and instead hit two men in a nearby restaurant. The victims survived the incident.\nThe trial was held in the New York Supreme Court, Kings County. We concern ourselves here only\nwith the jury selection process and the proper application of Batson, which had been handed down\nbefore the trial took place. After 63 potential jurors had been questioned and 9 had been empaneled,\ndefense counsel objected that the prosecutor had used four peremptory challenges to exclude Latino\npotential jurors. Two of the Latino venirepersons challenged by the prosecutor had brothers who had\nbeen convicted of crimes, and the brother of one of those potential jurors was being prosecuted by\nthe same District Attorney\xe2\x80\x99s office for a probation violation. Petitioner does not press his Batson claim\nwith respect to those prospective jurors, and we concentrate on the other two excluded individuals.\nAfter petitioner raised his Batson objection, the prosecutor did not wait for a ruling on whether\npetitioner had established a prima facie case of racial discrimination. Instead, the prosecutor\nvolunteered his reasons for striking the jurors in question. He explained:\n\xe2\x80\x9cYour honor, my reason for rejecting the \xe2\x80\x93 these two jurors \xe2\x80\x93 I\xe2\x80\x99m not certain as to whether\nthey\xe2\x80\x99re Hispanics. I didn\xe2\x80\x99t notice how many Hispanics had been called to the panel, but my\nreason for rejecting these two is I feel very uncertain that they would be able to listen and\nfollow the interpreter.\xe2\x80\x9d\nAfter an interruption by defense counsel, the prosecutor continued:\n\xe2\x80\x9cWe talked to them for a long time; the Court talked to them, I talked to them. I believe that\nin their heart they will try to follow it, but I felt there was a great deal of uncertainty as to\nwhether they could accept the interpreter as the final arbiter of what was said by each of the\nwitnesses, especially where there were going to be Spanish-speaking witnesses, and I didn\xe2\x80\x99t\nfeel, when I asked them whether or not they could accept the interpreter\xe2\x80\x99s translation of it, I\ndidn\xe2\x80\x99t feel that they could. They each looked away from me and said with some hesitancy that\nthey would try, not that they could, but that they would try to follow the interpreter, and I feel\nthat, in a case where the interpreter will be for the main witnesses, they would have an undue\nimpact upon the jury.\xe2\x80\x9d\n\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2 | 339\n\n\x0cDefense counsel moved for a mistrial \xe2\x80\x9cbased on the conduct of the District Attorney,\xe2\x80\x9d and the\nprosecutor requested a chance to call a supervisor to the courtroom before the judge\xe2\x80\x99s ruling.\nFollowing a recess, defense counsel renewed his motion, which the trial court denied. Discussion of\nthe objection continued, however, and the prosecutor explained that he would have no motive to\nexclude Latinos from the jury:\n\xe2\x80\x9c[T]his case, involves four complainants. Each of the complainants is Hispanic. All my\nwitnesses, that is, civilian witnesses, are going to be Hispanic. I have absolutely no reason \xe2\x80\x93\nthere\xe2\x80\x99s no reason for me to want to exclude Hispanics, because all the parties involved are\nHispanic, and I certainly would have no reason to do that.\xe2\x80\x9d\nAfter further interchange among the judge and attorneys, the trial court again rejected petitioner\xe2\x80\x99s\nclaim.\nOn appeal, the New York Supreme Court, Appellate Division, noted that, though the ethnicity of\none challenged bilingual juror remained uncertain, the prosecutor had challenged the only three\nprospective jurors with definite Hispanic surnames. The court ruled that this fact made out a prima\nfacie showing of discrimination. The court affirmed the trial court\xe2\x80\x99s rejection of petitioner\xe2\x80\x99s Batson\nclaim, however, on the ground that the prosecutor had offered race-neutral explanations for the\nperemptory strikes sufficient to rebut petitioner\xe2\x80\x99s prima facie case.\nThe New York Court of Appeals also affirmed the judgment, holding that the prosecutor had offered a\nlegitimate basis for challenging the individuals in question and deferring to the factual findings of the\nlower New York courts. Two judges dissented, concluding that, on this record, analyzed in the light of\nstandards they would adopt as a matter of state constitutional law, the prosecutor\xe2\x80\x99s exclusion of the\nbilingual potential jurors should not have been permitted. We granted certiorari and now affirm.\n\nII\nIn Batson, we outlined a three-step process for evaluating claims that a prosecutor has used\nperemptory challenges in a manner violating the Equal Protection Clause. * * * *\n\nA.\n{discussion of procedural posture omitted}\n\nB\nPetitioner contends that the reasons given by the prosecutor for challenging the two bilingual jurors\nwere not race neutral. In evaluating the race neutrality of an attorney\xe2\x80\x99s explanation, a court must\n\n340 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cdetermine whether, assuming the proffered reasons for the peremptory challenges are true, the\nchallenges violate the Equal Protection Clause as a matter of law. * * * *\nA neutral explanation in the context of our analysis here means an explanation based on something\nother than the race of the juror. At this step of the inquiry, the issue is the facial validity of the\nprosecutor\xe2\x80\x99s explanation. Unless a discriminatory intent is inherent in the prosecutor\xe2\x80\x99s explanation,\nthe reason offered will be deemed race neutral.\nPetitioner argues that Spanish-language ability bears a close relation to ethnicity, and that, as a\nconsequence, it violates the Equal Protection Clause to exercise a peremptory challenge on the\nground that a Latino potential juror speaks Spanish. He points to the high correlation between\nSpanish-language ability and ethnicity in New York, where the case was tried. We need not address\nthat argument here, for the prosecutor did not rely on language ability without more, but explained\nthat the specific responses and the demeanor of the two individuals during voir dire caused him to\ndoubt their ability to defer to the official translation of Spanish-language testimony.\nThe prosecutor here offered a race-neutral basis for these peremptory strikes. As explained by the\nprosecutor, the challenges rested neither on the intention to exclude Latino or bilingual jurors,\nnor on stereotypical assumptions about Latinos or bilinguals. The prosecutor\xe2\x80\x99s articulated basis for\nthese challenges divided potential jurors into two classes: those whose conduct during voir dire\nwould persuade him they might have difficulty in accepting the translator\xe2\x80\x99s rendition of Spanishlanguage testimony and those potential jurors who gave no such reason for doubt. Each category\nwould include both Latinos and non-Latinos. While the prosecutor\xe2\x80\x99s criterion might well result in the\ndisproportionate removal of prospective Latino jurors, that disproportionate impact does not turn the\nprosecutor\xe2\x80\x99s actions into a per se violation of the Equal Protection Clause.\nPetitioner contends that despite the prosecutor\xe2\x80\x99s focus on the individual responses of these jurors,\nhis reason for the peremptory strikes has the effect of a pure, language-based reason, because\n\xe2\x80\x9c[a]ny honest bilingual juror would have answered the prosecutor in the exact same way.\xe2\x80\x9d Petitioner\nasserts that a bilingual juror would hesitate in answering questions like those asked by the judge and\nprosecutor due to the difficulty of ignoring the actual Spanish-language testimony. In his view, no\nmore can be expected than a commitment by a prospective juror to try to follow the interpreter\xe2\x80\x99s\ntranslation. * * * *\n\nC.\n{discussion of trial judge\xe2\x80\x99s findings and standard on review omitted}\n\nD.\nLanguage permits an individual to express both a personal identity and membership in a community,\nand those who share a common language may interact in ways more intimate than those without\nthis bond. Bilinguals, in a sense, inhabit two communities, and serve to bring them closer. Indeed,\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2 | 341\n\n\x0csome scholarly comment suggests that people proficient in two languages may not at times think\nin one language to the exclusion of the other. The analogy is that of a high-hurdler, who combines\nthe ability to sprint and to jump to accomplish a third feat with characteristics of its own, rather\nthan two separate functions. Grosjean, The Bilingual as a Competent but Specific Speaker-Hearer, 6 J.\nMultilingual & Multicultural Development 467 (1985). This is not to say that the cognitive processes\nand reactions of those who speak two languages are susceptible of easy generalization, for even\nthe term \xe2\x80\x9cbilingual\xe2\x80\x9d does not describe a uniform category. It is a simple word for a more complex\nphenomenon with many distinct categories and subdivisions. Sanchez, Our Linguistic and Social\nContext, in Spanish in the United States 9, 12 (J. Amastae & L. Elias-Olivares eds. 1982); Dodson,\nSecond Language Acquisition and Bilingual Development: A Theoretical Framework, 6 J. Multilingual &\nMulticultural Development 325, 326-327 (1985).\nOur decision today does not imply that exclusion of bilinguals from jury service is wise, or even that it\nis constitutional in all cases. It is a harsh paradox that one may become proficient enough in English to\nparticipate in trial, see, e.g., 28 U.S.C. 1865(b)(2), (3) (English-language ability required for federal jury\nservice), only to encounter disqualification because he knows a second language as well. As the Court\nobserved in a somewhat related context: \xe2\x80\x9cMere knowledge of [a foreign] language cannot reasonably\nbe regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable.\xe2\x80\x9d Meyer\nv. Nebraska (1923).\nJust as shared language can serve to foster community, language differences can be a source of\ndivision. Language elicits a response from others, ranging from admiration and respect, to distance\nand alienation, to ridicule and scorn. Reactions of the latter type all too often result from or initiate\nracial hostility. In holding that a race-neutral reason for a peremptory challenge means a reason other\nthan race, we do not resolve the more difficult question of the breadth with which the concept of\nrace should be defined for equal protection purposes. We would face a quite different case if the\nprosecutor had justified his peremptory challenges with the explanation that he did not want Spanishspeaking jurors. It may well be, for certain ethnic groups and in some communities, that proficiency\nin a particular language, like skin color, should be treated as a surrogate for race under an equal\nprotection analysis. Cf. Yu Cong Eng v. Trinidad (1926) (law prohibiting keeping business records in\nother than specified languages violated equal protection rights of Chinese businessmen); Meyer v.\nNebraska (striking down law prohibiting grade schools from teaching languages other than English).\nAnd, as we make clear, a policy of striking all who speak a given language, without regard to the\nparticular circumstances of the trial or the individual responses of the jurors, may be found by the\ntrial judge to be a pretext for racial discrimination. But that case is not before us.\n\n342 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=38#h5p-83\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=38#h5p-84\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=38#h5p-85\n\nNotes\n1. Hernandez v. New York implicitly rejects the argument that Spanish-speakers constitute a racial (or\nnational origin) classification and implicitly rejects the argument that Spanish-speakers would be a\ngroup that would merit other than rational basis scrutiny. How would you argue otherwise? Does this\napply to all language groups in the United States?\n2. In an earlier case, Hernandez v. Texas, 347 U.S. 475 (1974), the Court held that the \xe2\x80\x9csystematic\nexclusion\xe2\x80\x9d of \xe2\x80\x9cMexicans\xe2\x80\x9d from the juror pool violated the Equal Protection Clause.\nAlthough 14% of the county population were persons with \xe2\x80\x9cMexican or Latin American surnames,\xe2\x80\x9d the\nstate stipulated that \xe2\x80\x9cfor the last twenty-five years, there is no record of any person with a Mexican or\nLatin American name having served on a jury commission, grand jury or petit jury in Jackson County.\xe2\x80\x9d\nWriting for the Court, Chief Justice Warren relied on Strauder v. West Virginia (1880) and stated:\nThe State of Texas would have us hold that there are only two classes\xe2\x80\x94white and\nNegro\xe2\x80\x94within the contemplation of the Fourteenth Amendment. The decisions of this Court\ndo not support that view. * * * * Throughout our history, differences in race and color have\ndefined easily identifiable groups which have at times required the aid of the courts in\nsecuring equal treatment under the laws. But community prejudices are not static, and, from\ntime to time, other differences from the community norm may define other groups which\nneed the same protection. Whether such a group exists within a community is a question\nof fact. When the existence of a distinct class is demonstrated, and it is further shown that\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2 | 343\n\n\x0cthe laws, as written or as applied, single out that class for different treatment not based\non some reasonable classification, the guarantees of the Constitution have been violated.\nThe Fourteenth Amendment is not directed solely against discrimination due to a \xe2\x80\x9ctwo-class\ntheory\xe2\x80\x9d\xe2\x80\x94that is, based upon differences between \xe2\x80\x9cwhite\xe2\x80\x9d and Negro.\n* * * * The petitioner\xe2\x80\x99s initial burden in substantiating his charge of group discrimination\nwas to prove that persons of Mexican descent constitute a separate class in Jackson County,\ndistinct from \xe2\x80\x9cwhites.\xe2\x80\x9d One method by which this may be demonstrated is by showing the\nattitude of the community. Here, the testimony of responsible officials and citizens contained\nthe admission that residents of the community distinguished between \xe2\x80\x9cwhite\xe2\x80\x9d and \xe2\x80\x9cMexican.\xe2\x80\x9d\nThe participation of persons of Mexican descent in business and community groups was\nshown to be slight. Until very recent times, children of Mexican descent were required\nto attend a segregated school for the first four grades. At least one restaurant in town\nprominently displayed a sign announcing \xe2\x80\x9cNo Mexicans Served.\xe2\x80\x9d On the courthouse grounds\nat the time of the hearing, there were two men\xe2\x80\x99s toilets, one unmarked, and the other marked\n\xe2\x80\x9cColored Men\xe2\x80\x9d and \xe2\x80\x9cHombres Aqui\xe2\x80\x9d (\xe2\x80\x9cMen Here\xe2\x80\x9d). No substantial evidence was offered to rebut\nthe logical inference to be drawn from these facts, and it must be concluded that petitioner\nsucceeded in his proof.\n\nB. Classifications Based on Animus\n\nUnited States Dept. of Agriculture v. Moreno\n413 U.S. 528 (1973)\nBRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS, STEWART, WHITE, MARSHALL, BLACKMUN,\nAND POWELL, JJ., JOINED. DOUGLAS, J., FILED A CONCURRING OPINION. REHNQUIST, J., FILED A DISSENTING OPINION, IN\nWHICH BURGER, C. J., JOINED.\nMR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT.\nThis case requires us to consider the constitutionality of \xc2\xa7 3(e) of the Food Stamp Act of 1964, 7 U.S.C.\n2012 (e), as amended in 1971, which, with certain exceptions, excludes from participation in the food\nstamp program any household containing an individual who is unrelated to any other member of\nthe household. In practical effect, \xc2\xa7 3(e) creates two classes of persons for food stamp purposes: one\nclass is composed of those individuals who live in households all of whose members are related to\none another, and the other class consists of those individuals who live in households containing one\nor more members who are unrelated to the rest. The latter class of persons is denied federal food\nassistance. A three-judge District Court for the District of Columbia held this classification invalid\nas violative of the Due Process Clause of the Fifth Amendment. We noted probable jurisdiction. We\naffirm.\n344 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cI\nThe federal food stamp program was established in 1964 in an effort to alleviate hunger and\nmalnutrition among the more needy segments of our society. Eligibility for participation in the\nprogram is determined on a household rather than an individual basis. An eligible household\npurchases sufficient food stamps to provide that household with a nutritionally adequate diet. The\nhousehold pays for the stamps at a reduced rate based upon its size and cumulative income. The food\nstamps are then used to purchase food at retail stores, and the Government redeems the stamps at\nface value, thereby paying the difference between the actual cost of the food and the amount paid by\nthe household for the stamps.\nAs initially enacted, \xc2\xa7 3(e) defined a \xe2\x80\x9chousehold\xe2\x80\x9d as \xe2\x80\x9ca group of related or non-related individuals,\nwho are not residents of an institution or boarding house, but are living as one economic unit\nsharing common cooking facilities and for whom food is customarily purchased in common.\xe2\x80\x9d In\nJanuary 1971, however, Congress redefined the term \xe2\x80\x9chousehold\xe2\x80\x9d so as to include only groups of\nrelated individuals. Pursuant to this amendment, the Secretary of Agriculture promulgated regulations\nrendering ineligible for participation in the program any \xe2\x80\x9chousehold\xe2\x80\x9d whose members are not \xe2\x80\x9call\nrelated to each other.\xe2\x80\x9d\nAppellees in this case consist of several groups of individuals who allege that, although they satisfy\nthe income eligibility requirements for federal food assistance, they have nevertheless been excluded\nfrom the program solely because the persons in each group are not \xe2\x80\x9call related to each other.\xe2\x80\x9d Appellee\nJacinta Moreno, for example, is a 56-year-old diabetic who lives with Ermina Sanchez and the latter\xe2\x80\x99s\nthree children. They share common living expenses, and Mrs. Sanchez helps to care for appellee.\nAppellee\xe2\x80\x99s monthly income, derived from public assistance, is $75; Mrs. Sanchez receives $133 per\nmonth from public assistance. The household pays $135 per month for rent, gas, and electricity, of\nwhich appellee pays $50. Appellee spends $10 per month for transportation to a hospital for regular\nvisits, and $5 per month for laundry. That leaves her $10 per month for food and other necessities.\nDespite her poverty, appellee has been denied federal food assistance solely because she is unrelated\nto the other members of her household. Moreover, although Mrs. Sanchez and her three children\nwere permitted to purchase $108 worth of food stamps per month for $18, their participation in the\nprogram will be terminated if appellee Moreno continues to live with them. * * * *\nThese and two other groups of appellees instituted a class action against the Department of\nAgriculture, its Secretary, and two other departmental officials, seeking declaratory and injunctive\nrelief against the enforcement of the 1971 amendment of \xc2\xa7 3(e) and its implementing regulations. In\nessence, appellees contend, and the District Court held, that the \xe2\x80\x9cunrelated person\xe2\x80\x9d provision of \xc2\xa7 3(e)\ncreates an irrational classification in violation of the equal protection component of the Due Process\nClause of the Fifth Amendment. We agree.\n\nII\nUnder traditional equal protection analysis, a legislative classification must be sustained if the\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2 | 345\n\n\x0cclassification itself is rationally related to a legitimate governmental interest. See Dandridge v.\nWilliams (1970). The purposes of the Food Stamp Act were expressly set forth in the congressional\n\xe2\x80\x9cdeclaration of policy\xe2\x80\x9d:\n\xe2\x80\x9cIt is hereby declared to be the policy of Congress . . . to safeguard the health and well-being\nof the Nation\xe2\x80\x99s population and raise levels of nutrition among low-income households. The\nCongress hereby finds that the limited food purchasing power of low-income households\ncontributes to hunger and malnutrition among members of such households. The Congress\nfurther finds that increased utilization of food in establishing and maintaining adequate\nnational levels of nutrition will promote the distribution in a beneficial manner of our\nagricultural abundances and will strengthen our agricultural economy, as well as result in\nmore orderly marketing and distribution of food. To alleviate such hunger and malnutrition,\na food stamp program is herein authorized which will permit low-income households to\npurchase a nutritionally adequate diet through normal channels of trade.\xe2\x80\x9d\nThe challenged statutory classification (households of related persons versus households containing\none or more unrelated persons) is clearly irrelevant to the stated purposes of the Act. As the District\nCourt recognized, \xe2\x80\x9c[t]he relationships among persons constituting one economic unit and sharing\ncooking facilities have nothing to do with their abilities to stimulate the agricultural economy by\npurchasing farm surpluses, or with their personal nutritional requirements.\xe2\x80\x9d\nThus, if it is to be sustained, the challenged classification must rationally further some legitimate\ngovernmental interest other than those specifically stated in the congressional \xe2\x80\x9cdeclaration of policy.\xe2\x80\x9d\nRegrettably, there is little legislative history to illuminate the purposes of the 1971 amendment of\n\xc2\xa7 3(e). The legislative history that does exist, however, indicates that that amendment was intended\nto prevent so-called \xe2\x80\x9chippies\xe2\x80\x9d and \xe2\x80\x9chippie communes\xe2\x80\x9d from participating in the food stamp program.\nSee H. R. Conf. Rep. No. 91-1793, p. 8; 116 Cong. Rec. 44439 (1970) (Sen. Holland). The challenged\nclassification clearly cannot be sustained by reference to this congressional purpose. For if the\nconstitutional conception of \xe2\x80\x9cequal protection of the laws\xe2\x80\x9d means anything, it must at the very least\nmean that a bare congressional desire to harm a politically unpopular group cannot constitute a\nlegitimate governmental interest. As a result, \xe2\x80\x9c[a] purpose to discriminate against hippies cannot, in\nand of itself and without reference to [some independent] considerations in the public interest, justify\nthe 1971 amendment.\xe2\x80\x9d\nAlthough apparently conceding this point, the Government maintains that the challenged\nclassification should nevertheless be upheld as rationally related to the clearly legitimate\ngovernmental interest in minimizing fraud in the administration of the food stamp program. In\nessence, the Government contends that, in adopting the 1971 amendment, Congress might rationally\nhave thought (1) that households with one or more unrelated members are more likely than \xe2\x80\x9cfully\nrelated\xe2\x80\x9d households to contain individuals who abuse the program by fraudulently failing to report\nsources of income or by voluntarily remaining poor; and (2) that such households are \xe2\x80\x9crelatively\nunstable,\xe2\x80\x9d thereby increasing the difficulty of detecting such abuses. But even if we were to accept as\nrational the Government\xe2\x80\x99s wholly unsubstantiated assumptions concerning the differences between\n\xe2\x80\x9crelated\xe2\x80\x9d and \xe2\x80\x9cunrelated\xe2\x80\x9d households, we still could not agree with the Government\xe2\x80\x99s conclusion that\n346 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cthe denial of essential federal food assistance to all otherwise eligible households containing unrelated\nmembers constitutes a rational effort to deal with these concerns.\nAt the outset, it is important to note that the Food Stamp Act itself contains provisions, wholly\nindependent of \xc2\xa7 3(e) aimed specifically at the problems of fraud and of the voluntarily poor. For\nexample, with certain exceptions, \xc2\xa7 5(c) of the Act, renders ineligible for assistance any household\ncontaining \xe2\x80\x9can able-bodied adult person between the ages of eighteen and sixty-five\xe2\x80\x9d who fails to\nregister for, and accept, offered employment. Similarly, \xc2\xa7\xc2\xa7 14(b) and (c) specifically impose strict\ncriminal penalties upon any individual who obtains or uses food stamps fraudulently. The existence of\nthese provisions necessarily casts considerable doubt upon the proposition that the 1971 amendment\ncould rationally have been intended to prevent those very same abuses.\nMoreover, in practical effect, the challenged classification simply does not operate so as rationally to\nfurther the prevention of fraud. * * * * Thus, in practical operation, the 1971 amendment excludes from\nparticipation in the food stamp program, not those persons who are \xe2\x80\x9clikely to abuse the program\xe2\x80\x9d but,\nrather, only those persons who are so desperately in need of aid that they cannot even afford to alter\ntheir living arrangements so as to retain their eligibility. Traditional equal protection analysis does not\nrequire that every classification be drawn with precise \xe2\x80\x9c\xe2\x80\x98mathematical nicety.\xe2\x80\x99\xe2\x80\x9d Dandridge v. Williams.\nBut the classification here in issue is not only \xe2\x80\x9cimprecise,\xe2\x80\x9d it is wholly without any rational basis. The\njudgment of the District Court holding the \xe2\x80\x9cunrelated person\xe2\x80\x9d provision invalid under the Due Process\nClause of the Fifth Amendment is therefore\nAffirmed.\nMR. JUSTICE DOUGLAS, CONCURRING {OMITTED}.\nMR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE CONCURS, DISSENTING.\n* * * * The Court\xe2\x80\x99s opinion would make a very persuasive congressional committee report arguing\nagainst the adoption of the limitation in question. Undoubtedly, Congress attacked the problem with\na rather blunt instrument and, just as undoubtedly, persuasive arguments may be made that what\nwe conceive to be its purpose will not be significantly advanced by the enactment of the limitation.\nBut questions such as this are for Congress, rather than for this Court; our role is limited to the\ndetermination of whether there is any rational basis on which Congress could decide that public funds\nmade available under the food stamp program should not go to a household containing an individual\nwho is unrelated to any other member of the household.\nI do not believe that asserted congressional concern with the fraudulent use of food stamps is, when\ninterpreted in the light most favorable to sustaining the limitation, quite as irrational as the Court\nseems to believe. * * * *\n\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2 | 347\n\n\x0cCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=38#h5p-86\n\nCity of Cleburne v. Cleburne Living Center\n473 U.S. 432 (1985)\nWHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C. J., AND POWELL, REHNQUIST, STEVENS, AND\nO\xe2\x80\x99CONNOR, JJ., JOINED. STEVENS, J., FILED A CONCURRING OPINION, IN WHICH BURGER, C. J., JOINED. MARSHALL, J.,\nFILED AN OPINION CONCURRING IN THE JUDGMENT IN PART AND DISSENTING IN PART, IN WHICH BRENNAN AND\nBLACKMUN, JJ., JOINED.\nJUSTICE WHITE DELIVERED THE OPINION OF THE COURT.\nA Texas city denied a special use permit for the operation of a group home for the mentally retarded,\nacting pursuant to a municipal zoning ordinance requiring permits for such homes. The Court of\nAppeals for the Fifth Circuit held that mental retardation is a \xe2\x80\x9cquasi-suspect\xe2\x80\x9d classification and\nthat the ordinance violated the Equal Protection Clause because it did not substantially further an\nimportant governmental purpose. We hold that a lesser standard of scrutiny is appropriate, but\nconclude that under that standard the ordinance is invalid as applied in this case.\n\nI\nIn July 1980, respondent Jan Hannah purchased a building at 201 Featherston Street in the city of\nCleburne, Texas, with the intention of leasing it to Cleburne Living Center, Inc. (CLC), for the operation\nof a group home for the mentally retarded. It was anticipated that the home would house 13 retarded\nmen and women, who would be under the constant supervision of CLC staff members. The house had\nfour bedrooms and two baths, with a half bath to be added. CLC planned to comply with all applicable\nstate and federal regulations.\nThe city informed CLC that a special use permit would be required for the operation of a group\nhome at the site, and CLC accordingly submitted a permit application. In response to a subsequent\ninquiry from CLC, the city explained that under the zoning regulations applicable to the site, a special\nuse permit, renewable annually, was required for the construction of \xe2\x80\x9c[h]ospitals for the insane or\n348 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cfeeble-minded, or alcoholic [sic] or drug addicts, or penal or correctional institutions.\xe2\x80\x9d The city had\ndetermined that the proposed group home should be classified as a \xe2\x80\x9chospital for the feeble-minded.\xe2\x80\x9d\nAfter holding a public hearing on CLC\xe2\x80\x99s application, the City Council voted 3 to 1 to deny a special use\npermit.\nCLC then filed suit in Federal District Court against the city and a number of its officials, alleging, inter\nalia, that the zoning ordinance was invalid on its face and as applied because it discriminated against\nthe mentally retarded in violation of the equal protection rights of CLC and its potential residents.\nThe District Court found that \xe2\x80\x9c[i]f the potential residents of the Featherston Street home were not\nmentally retarded, but the home was the same in all other respects, its use would be permitted under\nthe city\xe2\x80\x99s zoning ordinance,\xe2\x80\x9d and that the City Council\xe2\x80\x99s decision \xe2\x80\x9cwas motivated primarily by the fact\nthat the residents of the home would be persons who are mentally retarded.\xe2\x80\x9d Even so, the District\nCourt held the ordinance and its application constitutional. Concluding that no fundamental right\nwas implicated and that mental retardation was neither a suspect nor a quasi-suspect classification,\nthe court employed the minimum level of judicial scrutiny applicable to equal protection claims. The\ncourt deemed the ordinance, as written and applied, to be rationally related to the city\xe2\x80\x99s legitimate\ninterests in \xe2\x80\x9cthe legal responsibility of CLC and its residents, . . . the safety and fears of residents in\nthe adjoining neighborhood,\xe2\x80\x9d and the number of people to be housed in the home.\nThe Court of Appeals for the Fifth Circuit reversed, determining that mental retardation was a quasisuspect classification and that it should assess the validity of the ordinance under intermediate-level\nscrutiny. Because mental retardation was in fact relevant to many legislative actions, strict scrutiny\nwas not appropriate. But in light of the history of \xe2\x80\x9cunfair and often grotesque mistreatment\xe2\x80\x9d of the\nretarded, discrimination against them was \xe2\x80\x9clikely to reflect deep-seated prejudice.\xe2\x80\x9d In addition, the\nmentally retarded lacked political power, and their condition was immutable. The court considered\nheightened scrutiny to be particularly appropriate in this case, because the city\xe2\x80\x99s ordinance withheld a\nbenefit which, although not fundamental, was very important to the mentally retarded. Without group\nhomes, the court stated, the retarded could never hope to integrate themselves into the community.\nApplying the test that it considered appropriate, the court held that the ordinance was invalid on\nits face because it did not substantially further any important governmental interests. The Court of\nAppeals went on to hold that the ordinance was also invalid as applied. Rehearing en banc was denied\nwith six judges dissenting in an opinion urging en banc consideration of the panel\xe2\x80\x99s adoption of a\nheightened standard of review. We granted certiorari.\n\nII\nThe Equal Protection Clause of the Fourteenth Amendment commands that no State shall \xe2\x80\x9cdeny to\nany person within its jurisdiction the equal protection of the laws,\xe2\x80\x9d which is essentially a direction\nthat all persons similarly situated should be treated alike. * * * * The general rule is that legislation is\npresumed to be valid and will be sustained if the classification drawn by the statute is rationally related\nto a legitimate state interest. When social or economic legislation is at issue, the Equal Protection\nClause allows the States wide latitude, and the Constitution presumes that even improvident\ndecisions will eventually be rectified by the democratic processes.\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2 | 349\n\n\x0cThe general rule gives way, however, when a statute classifies by race, alienage, or national origin.\nThese factors are so seldom relevant to the achievement of any legitimate state interest that laws\ngrounded in such considerations are deemed to reflect prejudice and antipathy \xe2\x80\x93 a view that those\nin the burdened class are not as worthy or deserving as others. For these reasons and because such\ndiscrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict\nscrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.\n****\nLegislative classifications based on gender also call for a heightened standard of review. That factor\ngenerally provides no sensible ground for differential treatment. \xe2\x80\x9c[W]hat differentiates sex from such\nnonsuspect statutes as intelligence or physical disability . . . is that the sex characteristic frequently\nbears no relation to ability to perform or contribute to society.\xe2\x80\x9d Frontiero v. Richardson (1973) (plurality\nopinion). Rather than resting on meaningful considerations, statutes distributing benefits and burdens\nbetween the sexes in different ways very likely reflect outmoded notions of the relative capabilities\nof men and women. A gender classification fails unless it is substantially related to a sufficiently\nimportant governmental interest. Mississippi University for Women v. Hogan (1982); Craig v. Boren\n(1976). Because illegitimacy is beyond the individual\xe2\x80\x99s control and bears \xe2\x80\x9cno relation to the individual\xe2\x80\x99s\nability to participate in and contribute to society,\xe2\x80\x9d official discriminations resting on that\ncharacteristic are also subject to somewhat heightened review. Those restrictions \xe2\x80\x9cwill survive equal\nprotection scrutiny to the extent they are substantially related to a legitimate state interest.\xe2\x80\x9d\nWe have declined, however, to extend heightened review to differential treatment based on age: * * * *\nMassachusetts Board of Retirement v. Murgia (1976). The lesson of Murgia is that where individuals\nin the group affected by a law have distinguishing characteristics relevant to interests the State has\nthe authority to implement, the courts have been very reluctant, as they should be in our federal\nsystem and with our respect for the separation of powers, to closely scrutinize legislative choices\nas to whether, how, and to what extent those interests should be pursued. In such cases, the Equal\nProtection Clause requires only a rational means to serve a legitimate end.\n\nIII\nAgainst this background, we conclude for several reasons that the Court of Appeals erred in holding\nmental retardation a quasi-suspect classification calling for a more exacting standard of judicial\nreview than is normally accorded economic and social legislation. First, it is undeniable, and it is not\nargued otherwise here, that those who are mentally retarded have a reduced ability to cope with\nand function in the everyday world. Nor are they all cut from the same pattern: as the testimony\nin this record indicates, they range from those whose disability is not immediately evident to those\nwho must be constantly cared for. They are thus different, immutably so, in relevant respects,\nand the States\xe2\x80\x99 interest in dealing with and providing for them is plainly a legitimate one. How\nthis large and diversified group is to be treated under the law is a difficult and often a technical\nmatter, very much a task for legislators guided by qualified professionals and not by the perhaps\nill-informed opinions of the judiciary. Heightened scrutiny inevitably involves substantive judgments\n\n350 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cabout legislative decisions, and we doubt that the predicate for such judicial oversight is present\nwhere the classification deals with mental retardation.\nSecond, the distinctive legislative response, both national and state, to the plight of those who are\nmentally retarded demonstrates not only that they have unique problems, but also that the lawmakers\nhave been addressing their difficulties in a manner that belies a continuing antipathy or prejudice and\na corresponding need for more intrusive oversight by the judiciary. Thus, the Federal Government has\nnot only outlawed discrimination against the mentally retarded in federally funded programs, see 504\nof the Rehabilitation Act of 1973, 29 U.S.C. 794, but it has also provided the retarded with the right\nto receive \xe2\x80\x9cappropriate treatment, services, and habilitation\xe2\x80\x9d in a setting that is \xe2\x80\x9cleast restrictive of\n[their] personal liberty.\xe2\x80\x9d Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. 6010(1),\n(2). In addition, the Government has conditioned federal education funds on a State\xe2\x80\x99s assurance that\nretarded children will enjoy an education that, \xe2\x80\x9cto the maximum extent appropriate,\xe2\x80\x9d is integrated with\nthat of nonmentally retarded children. Education of the Handicapped Act, 20 U.S.C. 1412(5) (B). The\nGovernment has also facilitated the hiring of the mentally retarded into the federal civil service by\nexempting them from the requirement of competitive examination. See 5 CFR 213.3102(t) (1984). The\nState of Texas has similarly enacted legislation that acknowledges the special status of the mentally\nretarded by conferring certain rights upon them, such as \xe2\x80\x9cthe right to live in the least restrictive\nsetting appropriate to [their] individual needs and abilities,\xe2\x80\x9d including \xe2\x80\x9cthe right to live . . . in a group\nhome.\xe2\x80\x9d Mentally Retarded Persons Act of 1977, Tex. Rev. Civ. Stat. Ann., Art. 5547-300, 7 (Vernon Supp.\n1985).\nSuch legislation thus singling out the retarded for special treatment reflects the real and undeniable\ndifferences between the retarded and others. That a civilized and decent society expects and approves\nsuch legislation indicates that governmental consideration of those differences in the vast majority\nof situations is not only legitimate but also desirable. It may be, as CLC contends, that legislation\ndesigned to benefit, rather than disadvantage, the retarded would generally withstand examination\nunder a test of heightened scrutiny. The relevant inquiry, however, is whether heightened scrutiny\nis constitutionally mandated in the first instance. Even assuming that many of these laws could\nbe shown to be substantially related to an important governmental purpose, merely requiring the\nlegislature to justify its efforts in these terms may lead it to refrain from acting at all. Much recent\nlegislation intended to benefit the retarded also assumes the need for measures that might be\nperceived to disadvantage them. The Education of the Handicapped Act, for example, requires an\n\xe2\x80\x9cappropriate\xe2\x80\x9d education, not one that is equal in all respects to the education of nonretarded children;\nclearly, admission to a class that exceeded the abilities of a retarded child would not be appropriate.\nSimilarly, the Developmental Disabilities Assistance Act and the Texas Act give the retarded the right\nto live only in the \xe2\x80\x9cleast restrictive setting\xe2\x80\x9d appropriate to their abilities, implicitly assuming the\nneed for at least some restrictions that would not be imposed on others. Especially given the wide\nvariation in the abilities and needs of the retarded themselves, governmental bodies must have a\ncertain amount of flexibility and freedom from judicial oversight in shaping and limiting their remedial\nefforts.\nThird, the legislative response, which could hardly have occurred and survived without public\nsupport, negates any claim that the mentally retarded are politically powerless in the sense that they\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2 | 351\n\n\x0chave no ability to attract the attention of the lawmakers. Any minority can be said to be powerless to\nassert direct control over the legislature, but if that were a criterion for higher level scrutiny by the\ncourts, much economic and social legislation would now be suspect.\nFourth, if the large and amorphous class of the mentally retarded were deemed quasi-suspect for the\nreasons given by the Court of Appeals, it would be difficult to find a principled way to distinguish a\nvariety of other groups who have perhaps immutable disabilities setting them off from others, who\ncannot themselves mandate the desired legislative responses, and who can claim some degree of\nprejudice from at least part of the public at large. One need mention in this respect only the aging, the\ndisabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to\ndo so.\nDoubtless, there have been and there will continue to be instances of discrimination against the\nretarded that are in fact invidious, and that are properly subject to judicial correction under\nconstitutional norms. But the appropriate method of reaching such instances is not to create a new\nquasi-suspect classification and subject all governmental action based on that classification to more\nsearching evaluation. Rather, we should look to the likelihood that governmental action premised on\na particular classification is valid as a general matter, not merely to the specifics of the case before\nus. Because mental retardation is a characteristic that the government may legitimately take into\naccount in a wide range of decisions, and because both State and Federal Governments have recently\ncommitted themselves to assisting the retarded, we will not presume that any given legislative action,\neven one that disadvantages retarded individuals, is rooted in considerations that the Constitution\nwill not tolerate.\nOur refusal to recognize the retarded as a quasi-suspect class does not leave them entirely\nunprotected from invidious discrimination. To withstand equal protection review, legislation that\ndistinguishes between the mentally retarded and others must be rationally related to a legitimate\ngovernmental purpose. This standard, we believe, affords government the latitude necessary both\nto pursue policies designed to assist the retarded in realizing their full potential, and to freely and\nefficiently engage in activities that burden the retarded in what is essentially an incidental manner.\nThe State may not rely on a classification whose relationship to an asserted goal is so attenuated as\nto render the distinction arbitrary or irrational. See United States Dept. of Agriculture v. Moreno (1973).\nFurthermore, some objectives \xe2\x80\x93 such as \xe2\x80\x9ca bare . . . desire to harm a politically unpopular group,\xe2\x80\x9d \xe2\x80\x93 are\nnot legitimate state interests. Beyond that, the mentally retarded, like others, have and retain their\nsubstantive constitutional rights in addition to the right to be treated equally by the law.\n\nIV\nWe turn to the issue of the validity of the zoning ordinance insofar as it requires a special use permit\nfor homes for the mentally retarded. We inquire first whether requiring a special use permit for the\nFeatherston home in the circumstances here deprives respondents of the equal protection of the laws.\nIf it does, there will be no occasion to decide whether the special use permit provision is facially\ninvalid where the mentally retarded are involved, or to put it another way, whether the city may never\n352 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cinsist on a special use permit for a home for the mentally retarded in an R-3 zone. This is the preferred\ncourse of adjudication since it enables courts to avoid making unnecessarily broad constitutional\njudgments.\nThe constitutional issue is clearly posed. The city does not require a special use permit in an R-3 zone\nfor apartment houses, multiple dwellings, boarding and lodging houses, fraternity or sorority houses,\ndormitories, apartment hotels, hospitals, sanitariums, nursing homes for convalescents or the aged\n(other than for the insane or feebleminded or alcoholics or drug addicts), private clubs or fraternal\norders, and other specified uses. It does, however, insist on a special permit for the Featherston home,\nand it does so, as the District Court found, because it would be a facility for the mentally retarded.\nMay the city require the permit for this facility when other care and multiple-dwelling facilities are\nfreely permitted?\nIt is true, as already pointed out, that the mentally retarded as a group are indeed different from\nothers not sharing their misfortune, and in this respect they may be different from those who would\noccupy other facilities that would be permitted in an R-3 zone without a special permit. But this\ndifference is largely irrelevant unless the Featherston home and those who would occupy it would\nthreaten legitimate interests of the city in a way that other permitted uses such as boarding houses\nand hospitals would not. Because in our view the record does not reveal any rational basis for believing\nthat the Featherston home would pose any special threat to the city\xe2\x80\x99s legitimate interests, we affirm\nthe judgment below insofar as it holds the ordinance invalid as applied in this case.\nThe District Court found that the City Council\xe2\x80\x99s insistence on the permit rested on several factors.\nFirst, the Council was concerned with the negative attitude of the majority of property owners\nlocated within 200 feet of the Featherston facility, as well as with the fears of elderly residents of the\nneighborhood. But mere negative attitudes, or fear, unsubstantiated by factors which are properly\ncognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally\nretarded differently from apartment houses, multiple dwellings, and the like. It is plain that the\nelectorate as a whole, whether by referendum or otherwise, could not order city action violative of\nthe Equal Protection Clause, and the city may not avoid the strictures of that Clause by deferring to\nthe wishes or objections of some fraction of the body politic. \xe2\x80\x9cPrivate biases may be outside the reach\nof the law, but the law cannot, directly or indirectly, give them effect.\xe2\x80\x9d Palmore v. Sidoti (1984).\nSecond, the Council had two objections to the location of the facility. It was concerned that the facility\nwas across the street from a junior high school, and it feared that the students might harass the\noccupants of the Featherston home. But the school itself is attended by about 30 mentally retarded\nstudents, and denying a permit based on such vague, undifferentiated fears is again permitting some\nportion of the community to validate what would otherwise be an equal protection violation. The\nother objection to the home\xe2\x80\x99s location was that it was located on \xe2\x80\x9ca five hundred year flood plain.\xe2\x80\x9d\nThis concern with the possibility of a flood, however, can hardly be based on a distinction between\nthe Featherston home and, for example, nursing homes, homes for convalescents or the aged, or\nsanitariums or hospitals, any of which could be located on the Featherston site without obtaining a\nspecial use permit. The same may be said of another concern of the Council \xe2\x80\x93 doubts about the legal\nresponsibility for actions which the mentally retarded might take. If there is no concern about legal\nresponsibility with respect to other uses that would be permitted in the area, such as boarding and\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2 | 353\n\n\x0cfraternity houses, it is difficult to believe that the groups of mildly or moderately mentally retarded\nindividuals who would live at 201 Featherston would present any different or special hazard.\nFourth, the Council was concerned with the size of the home and the number of people that would\noccupy it. The District Court found, and the Court of Appeals repeated, that \xe2\x80\x9c[i]f the potential\nresidents of the Featherston Street home were not mentally retarded, but the home was the same in\nall other respects, its use would be permitted under the city\xe2\x80\x99s zoning ordinance.\xe2\x80\x9d Given this finding,\nthere would be no restrictions on the number of people who could occupy this home as a boarding\nhouse, nursing home, family dwelling, fraternity house, or dormitory. The question is whether it is\nrational to treat the mentally retarded differently. It is true that they suffer disability not shared by\nothers; but why this difference warrants a density regulation that others need not observe is not at\nall apparent. At least this record does not clarify how, in this connection, the characteristics of the\nintended occupants of the Featherston home rationally justify denying to those occupants what would\nbe permitted to groups occupying the same site for different purposes. Those who would live in the\nFeatherston home are the type of individuals who, with supporting staff, satisfy federal and state\nstandards for group housing in the community; and there is no dispute that the home would meet the\nfederal square-footage-per-resident requirement for facilities of this type. In the words of the Court\nof Appeals, \xe2\x80\x9c[t]he City never justifies its apparent view that other people can live under such \xe2\x80\x98crowded\xe2\x80\x99\nconditions when mentally retarded persons cannot.\xe2\x80\x9d\nIn the courts below the city also urged that the ordinance is aimed at avoiding concentration of\npopulation and at lessening congestion of the streets. These concerns obviously fail to explain why\napartment houses, fraternity and sorority houses, hospitals and the like, may freely locate in the area\nwithout a permit. So, too, the expressed worry about fire hazards, the serenity of the neighborhood,\nand the avoidance of danger to other residents fail rationally to justify singling out a home such as\n201 Featherston for the special use permit, yet imposing no such restrictions on the many other uses\nfreely permitted in the neighborhood.\nThe short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice\nagainst the mentally retarded, including those who would occupy the Featherston facility and who\nwould live under the closely supervised and highly regulated conditions expressly provided for by\nstate and federal law.\nThe judgment of the Court of Appeals is affirmed insofar as it invalidates the zoning ordinance as\napplied to the Featherston home. The judgment is otherwise vacated, and the case is remanded.\nIt is so ordered.\n\n354 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=38#h5p-87\n\nNotes\n1. Be prepared to articulate the criteria the Court in Cleburne uses to determine whether or not the\nclassification is one which merits heightened scrutiny.\n2. Dissenting in part, Justice Marshall, joined by Brennan and Blackmun argued that the Court was\nactually employing heightened review and that the classification deserved intermediate scrutiny.\nFootnote 24 of Justice Thurgood Marshall\xe2\x80\x99s opinion is instructive:\nNo single talisman can define those groups likely to be the target of classifications offensive\nto the Fourteenth Amendment and therefore warranting heightened or strict scrutiny;\nexperience, not abstract logic, must be the primary guide. The \xe2\x80\x9cpolitical powerlessness\xe2\x80\x9d of a\ngroup may be relevant, but that factor is neither necessary, as the gender cases demonstrate,\nnor sufficient, as the example of minors illustrates. Minors cannot vote and thus might be\nconsidered politically powerless to an extreme degree. Nonetheless, we see few statutes\nreflecting prejudice or indifference to minors, and I am not aware of any suggestion that\nlegislation affecting them be viewed with the suspicion of heightened scrutiny. Similarly,\nimmutability of the trait at issue may be relevant, but many immutable characteristics, such\nas height or blindness, are valid bases of governmental action and classifications under a\nvariety of circumstances. The political powerlessness of a group and the immutability of its\ndefining trait are relevant insofar as they point to a social and cultural isolation that gives\nthe majority little reason to respect or be concerned with that group\xe2\x80\x99s interests and needs.\nStatutes discriminating against the young have not been common nor need be feared because\nthose who do vote and legislate were once themselves young, typically have children of\ntheir own, and certainly interact regularly with minors. Their social integration means that\nminors, unlike discrete and insular minorities, tend to be treated in legislative arenas with full\nconcern and respect, despite their formal and complete exclusion from the electoral process.\nThe discreteness and insularity warranting a \xe2\x80\x9cmore searching judicial inquiry,\xe2\x80\x9d United States\nv. Carolene Products Co. n. 4 (1938), must therefore be viewed from a social and cultural\nperspective as well as a political one. To this task judges are well suited, for the lessons\nof history and experience are surely the best guide as to when, and with respect to what\ninterests, society is likely to stigmatize individuals as members of an inferior caste or view\nthem as not belonging to the community. Because prejudice spawns prejudice, and\nstereotypes produce limitations that confirm the stereotype on which they are based, a\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2 | 355\n\n\x0chistory of unequal treatment requires sensitivity to the prospect that its vestiges endure. In\nseparating those groups that are discrete and insular from those that are not, as in many\nimportant legal distinctions, \xe2\x80\x9ca page of history is worth a volume of logic.\xe2\x80\x9d New York Trust Co.\nv. Eisner (1921) (Holmes, J.).\n3. Be prepared to articulate the difference between \xe2\x80\x9cfacial\xe2\x80\x9d and \xe2\x80\x9cas applied\xe2\x80\x9d challenges to the\nconstitutionality of a statute, ordinance, or policy.\n\nRomer v. Evans\n517 U.S. 620 (1996)\nKENNEDY, J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEVENS, O\xe2\x80\x99CONNOR, SOUTER, GINSBURG, AND\nBREYER, JJ., JOINED. SCALIA, J., FILED A DISSENTING OPINION, IN WHICH REHNQUIST, C. J., AND THOMAS, J., JOINED.\nJUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT.\nOne century ago, the first Justice Harlan admonished this Court that the Constitution \xe2\x80\x9cneither knows\nnor tolerates classes among citizens.\xe2\x80\x9d Plessy v. Ferguson (1896) (dissenting opinion). Unheeded then,\nthose words now are understood to state a commitment to the law\xe2\x80\x99s neutrality where the rights of\npersons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold\ninvalid a provi-sion of Colorado\xe2\x80\x99s Constitution.\nThe enactment challenged in this case is an amendment to the Constitution of the State of Colorado,\nadopted in a 1992 statewide referendum. The parties and the state courts refer to it as \xe2\x80\x9cAmendment\n2,\xe2\x80\x9d its designation when submitted to the voters. The impetus for the amendment and the contentious\ncampaign that preceded its adoption came in large part from ordinances that had been passed in\nvarious Colorado municipalities. For example, the cities of Aspen and Boulder and the City and\nCounty of Denver each had enacted ordinances which banned discrimination in many transactions\nand activities, including housing, employment, education, public accommodations, and health and\nwelfare services.\nWhat gave rise to the statewide controversy was the protection the ordinances afforded to persons\ndiscriminated against by reason of their sexual orientation. Amendment 2 repeals these ordinances to\nthe extent they prohibit discrimination on the basis of \xe2\x80\x9chomosexual, lesbian or bisexual orientation,\nconduct, practices or relationships.\xe2\x80\x9d Colo. Const., Art. II, \xc2\xa7 30b.\nYet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits\nall legislative, executive or judicial action at any level of state or local government designed to protect\nthe named class, a class we shall refer to as homosexual persons or gays and lesbians. The amendment\nreads:\nNo Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation.\n356 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cNeither the State of Colorado, through any of its branches or departments, nor any of its\nagencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce\nany statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual\norientation, conduct, practices or relationships shall constitute or otherwise be the basis of or\nentitle any person or class of persons to have or claim any minority status, quota preferences,\nprotected status or claim of discrimination. This Section of the Constitution shall be in all\nrespects self executing.\nSoon after Amendment 2 was adopted, this litigation to declare its invalidity and enjoin its\nenforcement was commenced in the District Court for the City and County of Denver. Among the\nplaintiffs (respondents here) were homosexual persons, some of them government employees. They\nalleged that enforcement of Amendment 2 would subject them to immediate and substantial risk\nof discrimination on the basis of their sexual orientation. Other plaintiffs (also respondents here)\nincluded the three municipalities whose ordinances we have cited and certain other governmental\nentities which had acted earlier to protect homosexuals from discrimination but would be prevented\nby Amendment 2 from continuing to do so. Although Governor Romer had been on record opposing\nthe adoption of Amendment 2, he was named in his official capacity as a defendant, together with the\nColorado Attorney General and the State of Colorado.\nThe trial court granted a preliminary injunction to stay enforcement of Amendment 2, and an appeal\nwas taken to the Supreme Court of Colorado. Sustaining the interim injunction and remanding the\ncase for further proceedings, the State Supreme Court held that Amendment 2 was subject to strict\nscrutiny under the Fourteenth Amendment because it infringed the fundamental right of gays and\nlesbians to participate in the political process. To reach this conclusion, the state court relied on\nour voting rights cases, e.g., Reynolds v. Sims (1964), and on our precedents involving discriminatory\nrestructuring of governmental decisionmaking, see, e.g., Hunter v. Erickson (1969); Washington v.\nSeattle School Dist. No. 1 (1982). On remand, the State advanced various arguments in an effort to show\nthat Amendment 2 was narrowly tailored to serve compelling interests, but the trial court found none\nsufficient. It enjoined enforcement of Amendment 2, and the Supreme Court of Colorado, in a second\nopinion, affirmed the ruling. We granted certiorari and now affirm the judgment, but on a rationale\ndifferent from that adopted by the State Supreme Court.\nThe State\xe2\x80\x99s principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same\nposition as all other persons. So, the State says, the measure does no more than deny homosexuals\nspecial rights. This reading of the amendment\xe2\x80\x99s language is implausible. We rely not upon our own\ninterpretation of the amendment but upon the authoritative construction of Colorado\xe2\x80\x99s Supreme\nCourt * * * * {concluding that} \xe2\x80\x9cThe \xe2\x80\x98ultimate effect\xe2\x80\x99 of Amendment 2 is to prohibit any governmental\nentity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the\nfuture unless the state constitution is first amended to permit such measures.\xe2\x80\x9d\nSweeping and comprehensive is the change in legal status effected by this law. So much is evident\nfrom the ordinances that the Colorado Supreme Court declared would be void by operation of\nAmendment 2. Homosexuals, by state decree, are put in a solitary class with respect to transactions\nand relations in both the private and governmental spheres. The amendment withdraws from\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2 | 357\n\n\x0chomosexuals, but no others, specific legal protection from the injuries caused by discrimination, and\nit forbids reinstatement of these laws and policies.\nThe change that Amendment 2 works in the legal status of gays and lesbians in the private sphere\nis far reaching, both on its own terms and when considered in light of the structure and operation\nof modern anti discrimination laws. That structure is well illustrated by contemporary statutes and\nordinances prohibiting discrimination by providers of public accommodations. * * * *\nColorado\xe2\x80\x99s state and municipal laws typify this emerging tradition of statutory protection and follow\na consistent pattern. The laws first enumerate the persons or entities subject to a duty not to\ndiscriminate. The list goes well beyond the entities covered by the common law. The Boulder\nordinance, for example, has a comprehensive definition of entities deemed places of \xe2\x80\x9cpublic\naccommodation.\xe2\x80\x9d They include \xe2\x80\x9cany place of business engaged in any sales to the general public\nand any place that offers services, facilities, privileges, or advantages to the general public or that\nreceives financial support through solicitation of the general public or through governmental subsidy\nof any kind.\xe2\x80\x9d The Denver ordinance is of similar breadth, applying, for example, to hotels, restaurants,\nhospitals, dental clinics, theaters, banks, common carriers, travel and insurance agencies, and \xe2\x80\x9cshops\nand stores dealing with goods or services of any kind.\xe2\x80\x9d\nThese statutes and ordinances also depart from the common law by enumerating the groups or\npersons within their ambit of protection. Enumeration is the essential device used to make the\nduty not to discriminate concrete and to provide guidance for those who must comply. In following\nthis approach, Colorado\xe2\x80\x99s state and local governments have not limited anti discrimination laws to\ngroups that have so far been given the protection of heightened equal protection scrutiny under\nour cases. Rather, they set forth an extensive catalogue of traits which cannot be the basis for\ndiscrimination, including age, military status, marital status, pregnancy, parenthood, custody of a\nminor child, political affiliation, physical or mental disability of an individual or of his or her\nassociates\xe2\x80\x94and, in recent times, sexual orientation.\nAmendment 2 bars homosexuals from securing protection against the injuries that these public\naccommodations laws address. That in itself is a severe consequence, but there is more. Amendment\n2, in addition, nullifies specific legal protections for this targeted class in all transactions in housing,\nsale of real estate, insurance, health and welfare services, private education, and employment.\nNot confined to the private sphere, Amendment 2 also operates to repeal and forbid all laws or policies\nproviding specific protection for gays or lesbians from discrimination by every level of Colorado\ngovernment. The State Supreme Court cited two examples of protections in the governmental sphere\nthat are now rescinded and may not be reintroduced. The first is Colorado Executive Order D0035\n(1990), which forbids employment discrimination against \xe2\x80\x9c \xe2\x80\x98all state employees, classified and exempt\xe2\x80\x99\non the basis of sexual orientation.\xe2\x80\x9d Also repealed, and now forbidden, are \xe2\x80\x9cvarious provisions\nprohibiting discrimination based on sexual orientation at state colleges.\xe2\x80\x9d The repeal of these measures\nand the prohibition against their future reenactment demonstrates that Amendment 2 has the same\nforce and effect in Colorado\xe2\x80\x99s governmental sector as it does elsewhere and that it applies to policies\nas well as ordinary legislation.\n\n358 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cAmendment 2\xe2\x80\x99s reach may not be limited to specific laws passed for the benefit of gays and lesbians.\nIt is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays\nand lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination\nin governmental and private settings. At some point in the systematic administration of these laws, an\nofficial must determine whether homosexuality is an arbitrary and thus forbidden basis for decision.\n* * * * In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general\napplication, we cannot accept the view that Amendment 2\xe2\x80\x99s prohibition on specific legal protections\ndoes no more than deprive homosexuals of special rights. To the contrary, the amendment imposes\na special disability upon those persons alone. Homosexuals are forbidden the safeguards that others\nenjoy or may seek without constraint. They can obtain specific protection against discrimination only\nby enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State\xe2\x80\x99s view,\nby trying to pass helpful laws of general applicability. This is so no matter how local or discrete the\nharm, no matter how public and widespread the injury. We find nothing special in the protections\nAmendment 2 withholds. These are protections taken for granted by most people either because\nthey already have them or do not need them; these are protections against exclusion from an almost\nlimitless number of transactions and endeavors that constitute ordinary civic life in a free society.\nThe Fourteenth Amendment\xe2\x80\x99s promise that no person shall be denied the equal protection of the laws\nmust co exist with the practical necessity that most legislation classifies for one purpose or another,\nwith resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney\n(1979). We have attempted to reconcile the principle with the reality by stating that, if a law neither\nburdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so\nlong as it bears a rational relation to some legitimate end.\nAmendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the\npeculiar property of imposing a broad and undifferentiated disability on a single named group, an\nexceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so\ndiscontinuous with the reasons offered for it that the amendment seems inexplicable by anything but\nanimus toward the class that it affects; it lacks a rational relationship to legitimate state interests.\nTaking the first point, even in the ordinary equal protection case calling for the most deferential of\nstandards, we insist on knowing the relation between the classification adopted and the object to be\nattained. The search for the link between classification and objective gives substance to the Equal\nProtection Clause; it provides guidance and discipline for the legislature, which is entitled to know\nwhat sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law\nwill be sustained if it can be said to advance a legitimate government interest, even if the law seems\nunwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.\nSee New Orleans v. Dukes (1976) (tourism benefits justified classification favoring pushcart vendors\nof certain longevity); Williamson v. Lee Optical (1955) (assumed health concerns justified law favoring\noptometrists over opticians); Railway Express Agency, Inc. v. New York (1949) (potential traffic hazards\njustified exemption of vehicles advertising the owner\xe2\x80\x99s products from general advertising ban). The\nlaws challenged in the cases just cited were narrow enough in scope and grounded in a sufficient\nfactual context for us to ascertain that there existed some relation between the classification and the\npurpose it served. By requiring that the classification bear a rational relationship to an independent\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2 | 359\n\n\x0cand legitimate legislative end, we ensure that classifications are not drawn for the purpose of\ndisadvantaging the group burdened by the law.\nAmendment 2 confounds this normal process of judicial review. It is at once too narrow and too\nbroad. It identifies persons by a single trait and then denies them protection across the board. The\nresulting disqualification of a class of persons from the right to seek specific protection from the\nlaw is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself\ninstructive; \xe2\x80\x9c[d]iscriminations of an unusual character especially suggest careful consideration to\ndetermine whether they are obnoxious to the constitutional provision.\xe2\x80\x9d\nIt is not within our constitutional tradition to enact laws of this sort. Central both to the idea of\nthe rule of law and to our own Constitution\xe2\x80\x99s guarantee of equal protection is the principle that\ngovernment and each of its parts remain open on impartial terms to all who seek its assistance. \xe2\x80\x9c\xe2\x80\x98Equal\nprotection of the laws is not achieved through indiscriminate imposition of inequalities.\xe2\x80\x99\xe2\x80\x9d Sweatt v.\nPainter (1950) (quoting Shelley v. Kraemer (1948)). Respect for this principle explains why laws singling\nout a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring\nthat in general it shall be more difficult for one group of citizens than for all others to seek aid from\nthe government is itself a denial of equal protection of the laws in the most literal sense. \xe2\x80\x9cThe guaranty\nof \xe2\x80\x98equal protection of the laws is a pledge of the protection of equal laws.\xe2\x80\x99 \xe2\x80\x9d Skinner v. Oklahoma ex\nrel. Williamson (1942) (quoting Yick Wo v. Hopkins (1886)).\nDavis v. Beason (1890), not cited by the parties but relied upon by the dissent, is not evidence\nthat Amendment 2 is within our constitutional tradition, and any reliance upon it as authority for\nsustaining the amendment is misplaced. In Davis, the Court approved an Idaho territorial statute\ndenying Mormons, polygamists, and advocates of polygamy the right to vote and to hold office\nbecause, as the Court construed the statute, it \xe2\x80\x9csimply excludes from the privilege of voting, or of\nholding any office of honor, trust or profit, those who have been convicted of certain offences, and\nthose who advocate a practical resistance to the laws of the Territory and justify and approve the\ncommission of crimes forbidden by it.\xe2\x80\x9d To the extent Davis held that persons advocating a certain\npractice may be denied the right to vote, it is no longer good law. To the extent it held that the groups\ndesignated in the statute may be deprived of the right to vote because of their status, its ruling could\nnot stand without surviving strict scrutiny, a most doubtful outcome. To the extent Davis held that a\nconvicted felon may be denied the right to vote, its holding is not implicated by our decision and is\nunexceptionable. See Richardson v. Ramirez (1974).\nA second and related point is that laws of the kind now before us raise the inevitable inference\nthat the disadvantage imposed is born of animosity toward the class of persons affected. \xe2\x80\x9c[I]f the\nconstitutional conception of \xe2\x80\x98equal protection of the laws\xe2\x80\x99 means anything, it must at the very least\nmean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate\ngovernmental interest.\xe2\x80\x9d Department of Agriculture v. Moreno (1973). Even laws enacted for broad and\nambitious purposes often can be explained by reference to legitimate public policies which justify\nthe incidental disadvantages they impose on certain persons. Amendment 2, however, in making a\ngeneral announcement that gays and lesbians shall not have any particular protections from the\nlaw, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate\n360 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cjustifications that may be claimed for it. We conclude that, in addition to the far reaching deficiencies\nof Amendment 2 that we have noted, the principles it offends, in another sense, are conventional\nand venerable; a law must bear a rational relationship to a legitimate governmental purpose and\nAmendment 2 does not.\nThe primary rationale the State offers for Amendment 2 is respect for other citizens\xe2\x80\x99 freedom of\nassociation, and in particular the liberties of landlords or employers who have personal or religious\nobjections to homosexuality. Colorado also cites its interest in conserving resources to fight\ndiscrimination against other groups. The breadth of the Amendment is so far removed from these\nparticular justifications that we find it impossible to credit them. We cannot say that Amendment 2\nis directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment\ndivorced from any factual context from which we could discern a relationship to legitimate state\ninterests; it is a classification of persons undertaken for its own sake, something the Equal Protection\nClause does not permit. \xe2\x80\x9c[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth\nAmendment . . . .\xe2\x80\x9d Civil Rights Cases (1883).\nWe must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end\nbut to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class\nof persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment\nof the Supreme Court of Colorado is affirmed.\nIt is so ordered.\nJUSTICE SCALIA, WITH WHOM THE CHIEF JUSTICE AND JUSTICE THOMAS JOIN, DISSENTING.\nThe Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us\nhere is not the manifestation of a \xe2\x80\x9c\xe2\x80\x98bare . . . desire to harm\xe2\x80\x99\xe2\x80\x9d homosexuals, but is rather a modest\nattempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of\na politically powerful minority to revise those mores through use of the laws. That objective, and the\nmeans chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto\npronounced (hence the opinion\xe2\x80\x99s heavy reliance upon principles of righteousness rather than judicial\nholdings); they have been specifically approved by the Congress of the United States and by this Court.\nIn holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts\na decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick (1986), and\nplaces the prestige of this institution behind the proposition that opposition to homosexuality is as\nreprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that\ngave rise to the Colorado constitutional amendment (and to the preferential laws against which the\namendment was directed). Since the Constitution of the United States says nothing about this subject,\nit is left to be resolved by normal democratic means, including the democratic adoption of provisions\nin state constitutions. This Court has no business imposing upon all Americans the resolution favored\nby the elite class from which the Members of this institution are selected, pronouncing that\n\xe2\x80\x9canimosity\xe2\x80\x9d toward homosexuality. I vigorously dissent.\nLet me first discuss Part II of the Court\xe2\x80\x99s opinion, its longest section, which is devoted to rejecting the\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2 | 361\n\n\x0cState\xe2\x80\x99s arguments that Amendment 2 \xe2\x80\x9cputs gays and lesbians in the same position as all other persons,\xe2\x80\x9d\nand \xe2\x80\x9cdoes no more than deny homosexuals special rights.\xe2\x80\x9d * * * *\nDespite all of its hand wringing about the potential effect of Amendment 2 on general\nantidiscrimination laws, the * * * only denial of equal treatment [the majority] contends homosexuals\nhave suffered is this: They may not obtain preferential treatment without amending the state\nconstitution. That is to say, the principle underlying the Court\xe2\x80\x99s opinion is that one who is accorded\nequal treatment under the laws, but cannot as readily as others obtain preferential treatment under\nthe laws, has been denied equal protection of the laws. If merely stating this alleged \xe2\x80\x9cequal protection\xe2\x80\x9d\nviolation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.\nThe central thesis of the Court\xe2\x80\x99s reasoning is that any group is denied equal protection when, to\nobtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and\nhence more difficult level of political decisionmaking than others. The world has never heard of such\na principle, which is why the Court\xe2\x80\x99s opinion is so long on emotive utterance and so short on relevant\nlegal citation. And it seems to me most unlikely that any multilevel democracy can function under\nsuch a principle. For whenever a disadvantage is imposed, or conferral of a benefit is prohibited, at\none of the higher levels of democratic decisionmaking (i.e., by the state legislature rather than local\ngovernment, or by the people at large in the state constitution rather than the legislature), the affected\ngroup has (under this theory) been denied equal protection. To take the simplest of examples, consider\na state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen.\nOnce such a law is passed, the group composed of such relatives must, in order to get the benefit of\ncity contracts, persuade the state legislature\xe2\x80\x94unlike all other citizens, who need only persuade the\nmunicipality. It is ridiculous to consider this a denial of equal protection, which is why the Court\xe2\x80\x99s\ntheory is unheard of.\nThe Court might reply that the example I have given is not a denial of equal protection only because\nthe same \xe2\x80\x9crational basis\xe2\x80\x9d (avoidance of corruption) which renders constitutional the substantive\ndiscrimination against relatives (i.e., the fact that they alone cannot obtain city contracts) also\nautomatically suffices to sustain what might be called the electoral procedural discrimination against\nthem (i.e., the fact that they must go to the state level to get this changed). This is of course a perfectly\nreasonable response, and would explain why \xe2\x80\x9celectoral procedural discrimination\xe2\x80\x9d has not hitherto\nbeen heard of: a law that is valid in its substance is automatically valid in its level of enactment. But\nthe Court cannot afford to make this argument, for as I shall discuss next, there is no doubt of a\nrational basis for the substance of the prohibition at issue here. The Court\xe2\x80\x99s entire novel theory rests\nupon the proposition that there is something special\xe2\x80\x94something that cannot be justified by normal\n\xe2\x80\x9crational basis\xe2\x80\x9d analysis\xe2\x80\x94in making a disadvantaged group (or a nonpreferred group) resort to a higher\ndecisionmaking level. That proposition finds no support in law or logic.\nI turn next to whether there was a legitimate rational basis for the substance of the constitutional\namendment\xe2\x80\x94for the prohibition of special protection for homosexuals. It is unsurprising that the\nCourt avoids discussion of this question, since the answer is so obviously yes. The case most relevant\nto the issue before us today is not even mentioned in the Court\xe2\x80\x99s opinion: In Bowers v. Hardwick\n(1986), we held that the Constitution does not prohibit what virtually all States had done from the\n362 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cfounding of the Republic until very recent years\xe2\x80\x94making homosexual conduct a crime. That holding is\nunassailable, except by those who think that the Constitution changes to suit current fashions. * * * *\n* * * * But assuming that, in Amendment 2, a person of homosexual \xe2\x80\x9corientation\xe2\x80\x9d is someone who\ndoes not engage in homosexual conduct but merely has a tendency or desire to do so, Bowers still\nsuffices to establish a rational basis for the provision. If it is rational to criminalize the conduct, surely\nit is rational to deny special favor and protection to those with a self avowed tendency or desire to\nengage in the conduct. Indeed, where criminal sanctions are not involved, homosexual-orientation\xe2\x80\x9d is\nan acceptable stand in for homosexual conduct. A State \xe2\x80\x9cdoes not violate the Equal Protection Clause\nmerely because the classifications made by its laws are imperfect,\xe2\x80\x9d Dandridge v. Williams (1970). Just as\na policy barring the hiring of methadone users as transit employees does not violate equal protection\nsimply because some methadone users pose no threat to passenger safety, see New York City Transit\nAuthority v. Beazer (1979), and just as a mandatory retirement age of 50 for police officers does not\nviolate equal protection even though it prematurely ends the careers of many policemen over 50 who\nstill have the capacity to do the job, see Massachusetts Bd. of Retirement v. Murgia (1976) (per curiam),\nAmendment 2 is not constitutionally invalid simply because it could have been drawn more precisely\nso as to withdraw special antidiscrimination protections only from those of homosexual \xe2\x80\x9corientation\xe2\x80\x9d\nwho actually engage in homosexual conduct. * * * *\n* * * * The Court\xe2\x80\x99s opinion contains grim, disapproving hints that Coloradans have been guilty of\n\xe2\x80\x9canimus\xe2\x80\x9d or \xe2\x80\x9canimosity\xe2\x80\x9d toward homosexuality, as though that has been established as Unamerican.\nOf course it is our moral heritage that one should not hate any human being or class of human beings.\nBut I had thought that one could consider certain conduct reprehensible\xe2\x80\x94murder, for example, or\npolygamy, or cruelty to animals\xe2\x80\x94and could exhibit even \xe2\x80\x9canimus\xe2\x80\x9d toward such conduct. Surely that\nis the only sort of \xe2\x80\x9canimus\xe2\x80\x9d at issue here: moral disapproval of homosexual conduct, the same sort\nof moral disapproval that produced the centuries old criminal laws that we held constitutional in\nBowers. The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status\nto people who are homosexuals; they can be favored for many reasons\xe2\x80\x94for example, because they are\nsenior citizens or members of racial minorities. But it prohibits giving them favored status because of\ntheir homosexual conduct\xe2\x80\x94that is, it prohibits favored status for homosexuality.\nBut though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that\nthe degree of hostility reflected by Amendment 2 is the smallest conceivable. The Court\xe2\x80\x99s portrayal of\nColoradans as a society fallen victim to pointless, hate filled \xe2\x80\x9cgay bashing\xe2\x80\x9d is so false as to be comical.\nColorado not only is one of the 25 States that have repealed their antisodomy laws, but was among\nthe first to do so. But the society that eliminates criminal punishment for homosexual acts does\nnot necessarily abandon the view that homosexuality is morally wrong and socially harmful; often,\nabolition simply reflects the view that enforcement of such criminal laws involves unseemly intrusion\ninto the intimate lives of citizens.\nThere is a problem, however, which arises when criminal sanction of homosexuality is eliminated\nbut moral and social disapprobation of homosexuality is meant to be retained. The Court cannot\nbe unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to\nthe surface of the news, in heated political disputes over such matters as the introduction into local\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2 | 363\n\n\x0cschools of books teaching that homosexuality is an optional and fully acceptable \xe2\x80\x9calternate life style.\xe2\x80\x9d\nThe problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality)\nis that, because those who engage in homosexual conduct tend to reside in disproportionate numbers\nin certain communities, see Record, Exh. MMM, have high disposable income, App. 254 (affidavit\nof Prof. James Hunter), and of course care about homosexual rights issues much more ardently\nthan the public at large, they possess political power much greater than their numbers, both locally\nand statewide. Quite understandably, they devote this political power to achieving not merely a\ngrudging social toleration, but full social acceptance, of homosexuality. See, e.g., Jacobs, The Rhetorical\nConstruction of Rights: The Case of the Gay Rights Movement, 1969-1991, 72 Neb. L. Rev. 723, 724 (1993)\n(\xe2\x80\x9c[T]he task of gay rights proponents is to move the center of public discourse along a continuum from\nthe rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation\xe2\x80\x9d).\nBy the time Coloradans were asked to vote on Amendment 2, their exposure to homosexuals\xe2\x80\x99 quest for\nsocial endorsement was not limited to newspaper accounts of happenings in places such as New York,\nLos Angeles, San Francisco, and Key West. Three Colorado cities\xe2\x80\x94Aspen, Boulder, and Denver\xe2\x80\x94had\nenacted ordinances that listed \xe2\x80\x9csexual orientation\xe2\x80\x9d as an impermissible ground for discrimination,\nequating the moral disapproval of homosexual conduct with racial and religious bigotry. * * * * I do\nnot mean to be critical of these legislative successes; homosexuals are as entitled to use the legal\nsystem for reinforcement of their moral sentiments as are the rest of society. But they are subject to\nbeing countered by lawful, democratic countermeasures as well.\nThat is where Amendment 2 came in. It sought to counter both the geographic concentration and\nthe disproportionate political power of homosexuals by (1) resolving the controversy at the statewide\nlevel, and (2) making the election a single issue contest for both sides. It put directly, to all the citizens\nof the State, the question: Should homosexuality be given special protection? They answered no. The\nCourt today asserts that this most democratic of procedures is unconstitutional. * * * *\n[T]here is a much closer analogy, one that involves precisely the effort by the majority of citizens to\npreserve its view of sexual morality statewide, against the efforts of a geographically concentrated\nand politically powerful minority to undermine it. The constitutions of the States of Arizona, Idaho,\nNew Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is \xe2\x80\x9cforever\nprohibited.\xe2\x80\x9d Polygamists, and those who have a polygamous \xe2\x80\x9corientation,\xe2\x80\x9d have been \xe2\x80\x9csingled out\xe2\x80\x9d\nby these provisions for much more severe treatment than merely denial of favored status; and that\ntreatment can only be changed by achieving amendment of the state constitutions. The Court\xe2\x80\x99s\ndisposition today suggests that these provisions are unconstitutional, and that polygamy must be\npermitted in these States on a state legislated, or perhaps even local option, basis\xe2\x80\x94unless, of course,\npolygamists for some reason have fewer constitutional rights than homosexuals.\nThe United States Congress, by the way, required the inclusion of these anti polygamy provisions in\nthe constitutions of Arizona, New Mexico, Oklahoma, and Utah, as a condition of their admission\nto statehood. (For Arizona, New Mexico, and Utah, moreover, the Enabling Acts required that the\nanti polygamy provisions be \xe2\x80\x9cirrevocable without the consent of the United States and the people of\nsaid State\xe2\x80\x9d\xe2\x80\x94so that not only were \xe2\x80\x9ceach of [the] parts\xe2\x80\x9d of these States not \xe2\x80\x9copen on impartial terms\xe2\x80\x9d\nto polygamists, but even the States as a whole were not; polygamists would have to persuade the\nwhole country to their way of thinking.) Idaho adopted the constitutional provision on its own, but\n364 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cthe 51st Congress, which admitted Idaho into the Union, found its constitution to be \xe2\x80\x9crepublican in\nform and . . . in conformity with the Constitution of the United States Thus, this \xe2\x80\x9csingling out\xe2\x80\x9d of the\nsexual practices of a single group for statewide, democratic vote\xe2\x80\x94so utterly alien to our constitutional\nsystem, the Court would have us believe\xe2\x80\x94has not only happened, but has received the explicit\napproval of the United States Congress.\nI cannot say that this Court has explicitly approved any of these state constitutional provisions; but\nit has approved a territorial statutory provision that went even further, depriving polygamists of\nthe ability even to achieve a constitutional amendment, by depriving them of the power to vote. In\nDavis v. Beason (1890) * * * * To the extent, if any, that this opinion permits the imposition of adverse\nconsequences upon mere abstract advocacy of polygamy, it has of course been overruled by later\ncases. * * * *\nThis Court cited Beason with approval as recently as 1993, in an opinion authored by the same Justice\nwho writes for the Court today. * * * *\nThe Court today, announcing that Amendment 2 \xe2\x80\x9cdefies . . . conventional [constitutional] inquiry,\xe2\x80\x9d\nand \xe2\x80\x9cconfounds [the] normal process of judicial review,\xe2\x80\x9d employs a constitutional theory heretofore\nunknown to frustrate Colorado\xe2\x80\x99s reasonable effort to preserve traditional American moral values. The\nCourt\xe2\x80\x99s stern disapproval of \xe2\x80\x9canimosity\xe2\x80\x9d towards homosexuality might be compared with what an\nearlier Court (including the revered Justices Harlan and Bradley) said in Murphy v. Ramsey (1885),\nrejecting a constitutional challenge to a United States statute that denied the franchise in federal\nterritories to those who engaged in polygamous cohabitation:\n\xe2\x80\x9c[C]ertainly no legislation can be supposed more wholesome and necessary in the founding\nof a free, self governing commonwealth, fit to take rank as one of the coordinate States of\nthe Union, than that which seeks to establish it on the basis of the idea of the family, as\nconsisting in and springing from the union for life of one man and one woman in the holy\nestate of matrimony; the sure foundation of all that is stable and noble in our civilization; the\nbest guaranty of that reverent morality which is the source of all beneficent progress in social\nand political improvement.\xe2\x80\x9d\nI would not myself indulge in such official praise for heterosexual monogamy, because I think it no\nbusiness of the courts (as opposed to the political branches) to take sides in this culture war.\nBut the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine\nto take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence\nto traditional attitudes. To suggest, for example, that this constitutional amendment springs from\nnothing more than \xe2\x80\x9c \xe2\x80\x98a bare . . . desire to harm a politically unpopular group,\xe2\x80\x99 \xe2\x80\x9d quoting Department of\nAgriculture v. Moreno (1973), is nothing short of insulting. (It is also nothing short of preposterous to\ncall \xe2\x80\x9cpolitically unpopular\xe2\x80\x9d a group which enjoys enormous influence in American media and politics,\nand which, as the trial court here noted, though composing no more than 4% of the population had\nthe support of 46% of the voters on Amendment 2.)\nWhen the Court takes sides in the culture wars, it tends to be with the knights rather than the\nCHAPTER FIVE: Nonracial Classifications and Equal Protection - Part 2 | 365\n\n\x0cvilleins\xe2\x80\x94and more specifically with the Templars, reflecting the views and values of the lawyer\nclass from which the Court\xe2\x80\x99s Members are drawn. How that class feels about homosexuality will\nbe evident to anyone who wishes to interview job applicants at virtually any of the Nation\xe2\x80\x99s law\nschools. The interviewer may refuse to offer a job because the applicant is a Republican; because\nhe is an adulterer; because he went to the wrong prep school or belongs to the wrong country\nclub; because he eats snails; because he is a womanizer; because she wears real animal fur; or\neven because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate\nor partner of an applicant because he disapproves of the applicant\xe2\x80\x99s homosexuality, then he will\nhave violated the pledge which the Association of American Law Schools requires all its member\nschools to exact from job interviewers: \xe2\x80\x9cassurance of the employer\xe2\x80\x99s willingness\xe2\x80\x9d to hire homosexuals.\nBylaws of the Association of American Law Schools, Inc. \xc2\xa7 6-4(b); Executive Committee Regulations\nof the Association of American Law Schools \xc2\xa7 6.19, in 1995 Handbook, Association of American Law\nSchools. This law school view of what \xe2\x80\x9cprejudices\xe2\x80\x9d must be stamped out may be contrasted with the\nmore plebeian attitudes that apparently still prevail in the United States Congress, which has been\nunresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights\nlaws, see, e.g., Employment Non Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil\nRights Amendments of 1975, H. R. 5452, 94th Cong., 1st Sess. (1975), and which took the pains to exclude\nthem specifically from the Americans With Disabilities Act of 1990, see 42 U.S.C. \xc2\xa7 12211(a) (1988 ed.,\nSupp. V).\n***\nToday\xe2\x80\x99s opinion has no foundation in American constitutional law, and barely pretends to. The people\nof Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals\nin any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to\nprevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not\nonly an appropriate means to that legitimate end, but a means that Americans have employed before.\nStriking it down is an act, not of judicial judgment, but of political will. I dissent.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=38#h5p-88\n\n366 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cCHAPTER SIX: Fundamental Rights and\nEqual Protection\nI. Education\nSan Antonio Independent School District v. Rodriguez\n411 U.S. 1 (1973)\nPOWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.J., AND STEWART, BLACKMUN, AND\nREHNQUIST, JJ., JOINED. STEWART, J., FILED A CONCURRING OPINION. BRENNAN, J., FILED A DISSENTING OPINION. WHITE,\nJ., FILED A DISSENTING OPINION, IN WHICH DOUGLAS AND BRENNAN, JJ., JOINED. MARSHALL, J., FILED A DISSENTING\nOPINION, IN WHICH DOUGLAS, J., JOINED.\nMR. JUSTICE POWELL DELIVERED THE OPINION OF THE COURT.\nThis suit attacking the Texas system of financing public education was initiated by Mexican-American\nparents whose children attend the elementary and secondary schools in the Edgewood Independent\nSchool District, an urban school district in San Antonio, Texas. They brought a class action on behalf\nof schoolchildren throughout the State who are members of minority groups or who are poor and\nreside in school districts having a low property tax base. Named as defendants were the State Board\nof Education, the Commissioner of Education, the State Attorney General, and the Bexar County\n(San Antonio) Board of Trustees. * * * * In December 1971 {three judge court} panel rendered its\njudgment in a per curiam opinion holding the Texas school finance system unconstitutional under the\nEqual Protection Clause of the Fourteenth Amendment. The State appealed, and we noted probable\njurisdiction to consider the far-reaching constitutional questions presented. For the reasons stated in\nthis opinion, we reverse the decision of the District Court.\n\nI\nThe first Texas State Constitution, promulgated upon Texas\xe2\x80\x99 entry into the Union in 1845, provided for\nthe establishment of a system of free schools. Early in its history, Texas adopted a dual approach to\nthe financing of its schools, relying on mutual participation by the local school districts and the State.\n****\nUntil recent times, Texas was a predominantly rural State and its population and property wealth\nwere spread relatively evenly across the State. Sizable differences in the value of assessable property\nbetween local school districts became increasingly evident as the State became more industrialized\nCHAPTER SIX: Fundamental Rights and Equal Protection | 367\n\n\x0cand as rural-to-urban population shifts became more pronounced. The location of commercial and\nindustrial property began to play a significant role in determining the amount of tax resources\navailable to each school district. These growing disparities in population and taxable property\nbetween districts were responsible in part for increasingly notable differences in levels of local\nexpenditure for education.\nIn due time it became apparent to those concerned with financing public education that contributions\nfrom the Available School Fund were not sufficient to ameliorate these disparities. * * * * Recognizing\nthe need for increased state funding to help offset disparities in local spending and to meet Texas\xe2\x80\x99\nchanging educational requirements, the state legislature in the late 1940\xe2\x80\x99s undertook a thorough\nevaluation of public education with an eye toward major reform. In 1947, an 18-member committee,\ncomposed of educators and legislators, was appointed to explore alternative systems in other States\nand to propose a funding scheme that would guarantee a minimum or basic educational offering\nto each child and that would help overcome interdistrict disparities in taxable resources. The\nCommittee\xe2\x80\x99s efforts led to the passage of the Gilmer-Aikin bills, named for the Committee\xe2\x80\x99s cochairmen, establishing the Texas Minimum Foundation School Program. Today, this Program accounts\nfor approximately half of the total educational expenditures in Texas. The Program calls for state\nand local contributions to a fund earmarked specifically for teacher salaries, operating expenses, and\ntransportation costs. * * * *\nIn the years since this program went into operation in 1949, expenditures for education \xe2\x80\x93 from state\nas well as local sources \xe2\x80\x93 have increased steadily. * * * *\nThe school district in which appellees reside, the Edgewood Independent School District, has been\ncompared throughout this litigation with the Alamo Heights Independent School District. This\ncomparison between the least and most affluent districts in the San Antonio area serves to illustrate\nthe manner in which the dual system of finance operates and to indicate the extent to which\nsubstantial disparities exist despite the State\xe2\x80\x99s impressive progress in recent years. Edgewood is one\nof seven public school districts in the metropolitan area. Approximately 22,000 students are enrolled\nin its 25 elementary and secondary schools. The district is situated in the core-city sector of San\nAntonio in a residential neighborhood that has little commercial or industrial property. The residents\nare predominantly of Mexican-American descent: approximately 90% of the student population is\nMexican-American and over 6% is Negro. The average assessed property value per pupil is $5,960 \xe2\x80\x93\nthe lowest in the metropolitan area \xe2\x80\x93 and the median family income ($4,686) is also the lowest. At an\nequalized tax rate of $1.05 per $100 of assessed property \xe2\x80\x93 the highest in the metropolitan area \xe2\x80\x93 the\ndistrict contributed $26 to the education of each child for the 1967-1968 school year above its Local\nFund Assignment for the Minimum Foundation Program. The Foundation Program contributed $222\nper pupil for a state-local total of $248. Federal funds added another $108 for a total of $356 per pupil.\nAlamo Heights is the most affluent school district in San Antonio. Its six schools, housing\napproximately 5,000 students, are situated in a residential community quite unlike the Edgewood\nDistrict. The school population is predominantly \xe2\x80\x9cAnglo,\xe2\x80\x9d having only 18% Mexican-Americans and\nless than 1% Negroes. The assessed property value per pupil exceeds $49,000, and the median family\nincome is $8,001. In 1967-1968 the local tax rate of $.85 per $100 of valuation yielded $333 per pupil\nover and above its contribution to the Foundation Program. Coupled with the $225 provided from that\n368 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cProgram, the district was able to supply $558 per student. Supplemented by a $36 per-pupil grant\nfrom federal sources, Alamo Heights spent $594 per pupil.\n* * * * Despite * * * * recent increases, substantial interdistrict disparities in school expenditures\nfound by the District Court to prevail in San Antonio and in varying degrees throughout the State\nstill exist. And it was these disparities, largely attributable to differences in the amounts of money\ncollected through local property taxation, that led the District Court to conclude that Texas\xe2\x80\x99 dual\nsystem of public school financing violated the Equal Protection Clause. The District Court held that\nthe Texas system discriminates on the basis of wealth in the manner in which education is provided\nfor its people. Finding that wealth is a \xe2\x80\x9csuspect\xe2\x80\x9d classification and that education is a \xe2\x80\x9cfundamental\xe2\x80\x9d\ninterest, the District Court held that the Texas system could be sustained only if the State could\nshow that it was premised upon some compelling state interest. On this issue the court concluded\nthat \xe2\x80\x9c[n]ot only are defendants unable to demonstrate compelling state interests . . . they fail even to\nestablish a reasonable basis for these classifications.\xe2\x80\x9d\nTexas virtually concedes that its historically rooted dual system of financing education could not\nwithstand the strict judicial scrutiny that this Court has found appropriate in reviewing legislative\njudgments that interfere with fundamental constitutional rights or that involve suspect classifications.\n* * * * {But} the State defends the system\xe2\x80\x99s rationality with vigor and disputes the District Court\xe2\x80\x99s\nfinding that it lacks a \xe2\x80\x9creasonable basis.\xe2\x80\x9d\nThis, then, establishes the framework for our analysis. We must decide, first, whether the Texas\nsystem of financing public education operates to the disadvantage of some suspect class or impinges\nupon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring\nstrict judicial scrutiny. If so, the judgment of the District Court should be affirmed. If not, the\nTexas scheme must still be examined to determine whether it rationally furthers some legitimate,\narticulated state purpose and therefore does not constitute an invidious discrimination in violation of\nthe Equal Protection Clause of the Fourteenth Amendment.\n\nII\nThe District Court\xe2\x80\x99s opinion does not reflect the novelty and complexity of the constitutional\nquestions posed by appellees\xe2\x80\x99 challenge to Texas\xe2\x80\x99 system of school financing. In concluding that\nstrict judicial scrutiny was required that court relied on decisions dealing with the rights of indigents\nto equal treatment in the criminal trial and appellate processes, and on cases disapproving wealth\nrestrictions on the right to vote. Those cases, the District Court concluded, established wealth as\na suspect classification. Finding that the local property tax system discriminated on the basis of\nwealth, it regarded those precedents as controlling. It then reasoned, based on decisions of this Court\naffirming the undeniable importance of education, that there is a fundamental right to education and\nthat, absent some compelling state justification, the Texas system could not stand.\nWe are unable to agree that this case, which in significant aspects is sui generis, may be so neatly fitted\ninto the conventional mosaic of constitutional analysis under the Equal Protection Clause. Indeed,\n\nCHAPTER SIX: Fundamental Rights and Equal Protection | 369\n\n\x0cfor the several reasons that follow, we find neither the suspect-classification nor the fundamentalinterest analysis persuasive.\n\nA\nThe wealth discrimination discovered by the District Court in this case, and by several other courts\nthat have recently struck down school-financing laws in other States, is quite unlike any of the\nforms of wealth discrimination heretofore reviewed by this Court. Rather than focusing on the unique\nfeatures of the alleged discrimination, the courts in these cases have virtually assumed their findings\nof a suspect classification through a simplistic process of analysis: since, under the traditional systems\nof financing public schools, some poorer people receive less expensive educations than other more\naffluent people, these systems discriminate on the basis of wealth. This approach largely ignores\nthe hard threshold questions, including whether it makes a difference for purposes of consideration\nunder the Constitution that the class of disadvantaged \xe2\x80\x9cpoor\xe2\x80\x9d cannot be identified or defined in\ncustomary equal protection terms, and whether the relative \xe2\x80\x93 rather than absolute \xe2\x80\x93 nature of the\nasserted deprivation is of significant consequence. Before a State\xe2\x80\x99s laws and the justifications for\nthe classifications they create are subjected to strict judicial scrutiny, we think these threshold\nconsiderations must be analyzed more closely than they were in the court below.\nThe case comes to us with no definitive description of the classifying facts or delineation of the\ndisfavored class. Examination of the District Court\xe2\x80\x99s opinion and of appellees\xe2\x80\x99 complaint, briefs, and\ncontentions at oral argument suggests, however, at least three ways in which the discrimination\nclaimed here might be described. The Texas system of school financing might be regarded as\ndiscriminating (1) against \xe2\x80\x9cpoor\xe2\x80\x9d persons whose incomes fall below some identifiable level of poverty\nor who might be characterized as functionally \xe2\x80\x9cindigent,\xe2\x80\x9d or (2) against those who are relatively poorer\nthan others, or (3) against all those who, irrespective of their personal incomes, happen to reside in\nrelatively poorer school districts. Our task must be to ascertain whether, in fact, the Texas system\nhas been shown to discriminate on any of these possible bases and, if so, whether the resulting\nclassification may be regarded as suspect.\nThe precedents of this Court provide the proper starting point. The individuals, or groups of\nindividuals, who constituted the class discriminated against in our prior cases shared two\ndistinguishing characteristics: because of their impecunity they were completely unable to pay for\nsome desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful\nopportunity to enjoy that benefit. In Griffin v. Illinois (1956), and its progeny the Court invalidated\nstate laws that prevented an indigent criminal defendant from acquiring a transcript, or an adequate\nsubstitute for a transcript, for use at several stages of the trial and appeal process. The payment\nrequirements in each case were found to occasion de facto discrimination against those who, because\nof their indigency, were totally unable to pay for transcripts. And the Court in each case emphasized\nthat no constitutional violation would have been shown if the State had provided some \xe2\x80\x9cadequate\nsubstitute\xe2\x80\x9d for a full stenographic transcript. * * * *\nOnly appellees\xe2\x80\x99 first possible basis for describing the class disadvantaged by the Texas school370 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cfinancing system \xe2\x80\x93 discrimination against a class of definably \xe2\x80\x9cpoor\xe2\x80\x9d persons \xe2\x80\x93 might arguably meet\nthe criteria established in these prior cases. Even a cursory examination, however, demonstrates that\nneither of the two distinguishing characteristics of wealth classifications can be found here. First, in\nsupport of their charge that the system discriminates against the \xe2\x80\x9cpoor,\xe2\x80\x9d appellees have made no effort\nto demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent,\nor as composed of persons whose incomes are beneath any designated poverty level. Indeed, there\nis reason to believe that the poorest families are not necessarily clustered in the poorest property\ndistricts. A recent and exhaustive study of school districts in Connecticut concluded that \xe2\x80\x9c[i]t is clearly\nincorrect . . . to contend that the \xe2\x80\x98poor\xe2\x80\x99 live in \xe2\x80\x98poor\xe2\x80\x99 districts.\xe2\x80\x9d * * * * Defining \xe2\x80\x9cpoor\xe2\x80\x9d families as those\nbelow the Bureau of the Census \xe2\x80\x9cpoverty level,\xe2\x80\x9d the Connecticut study found, not surprisingly, that\nthe poor were clustered around commercial and industrial areas \xe2\x80\x93 those same areas that provide the\nmost attractive sources of property tax income for school districts. Whether a similar pattern would\nbe discovered in Texas is not known, but there is no basis on the record in this case for assuming that\nthe poorest people \xe2\x80\x93 defined by reference to any level of absolute impecunity \xe2\x80\x93 are concentrated in\nthe poorest districts.\nSecond, neither appellees nor the District Court addressed the fact that, unlike each of the foregoing\ncases, lack of personal resources has not occasioned an absolute deprivation of the desired benefit.\nThe argument here is not that the children in districts having relatively low assessable property values\nare receiving no public education; rather, it is that they are receiving a poorer quality education than\nthat available to children in districts having more assessable wealth. Apart from the unsettled and\ndisputed question whether the quality of education may be determined by the amount of money\nexpended for it, a sufficient answer to appellees\xe2\x80\x99 argument is that, at least where wealth is involved,\nthe Equal Protection Clause does not require absolute equality or precisely equal advantages. Nor,\nindeed, in view of the infinite variables affecting the educational process, can any system assure equal\nquality of education except in the most relative sense. Texas asserts that the Minimum Foundation\nProgram provides an \xe2\x80\x9cadequate\xe2\x80\x9d education for all children in the State. By providing 12 years of free\npublic-school education, and by assuring teachers, books, transportation, and operating funds, the\nTexas Legislature has endeavored to \xe2\x80\x9cguarantee, for the welfare of the state as a whole, that all people\nshall have at least an adequate program of education. This is what is meant by \xe2\x80\x98A Minimum Foundation\nProgram of Education.\xe2\x80\x99\xe2\x80\x9d The State repeatedly asserted in its briefs in this Court that it has fulfilled this\ndesire and that it now assures \xe2\x80\x9cevery child in every school district an adequate education.\xe2\x80\x9d No proof\nwas offered at trial persuasively discrediting or refuting the State\xe2\x80\x99s assertion.\nFor these two reasons \xe2\x80\x93 the absence of any evidence that the financing system discriminates against\nany definable category of \xe2\x80\x9cpoor\xe2\x80\x9d people or that it results in the absolute deprivation of education \xe2\x80\x93\nthe disadvantaged class is not susceptible of identification in traditional terms. * * * *\nHowever described, it is clear that appellees\xe2\x80\x99 suit asks this Court to extend its most exacting scrutiny\nto review a system that allegedly discriminates against a large, diverse, and amorphous class, unified\nonly by the common factor of residence in districts that happen to have less taxable wealth than other\ndistricts. The system of alleged discrimination and the class it defines have none of the traditional\nindicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history\n\nCHAPTER SIX: Fundamental Rights and Equal Protection | 371\n\n\x0cof purposeful unequal treatment, or relegated to such a position of political powerlessness as to\ncommand extraordinary protection from the majoritarian political process.\nWe thus conclude that the Texas system does not operate to the peculiar disadvantage of any\nsuspect class. But in recognition of the fact that this Court has never heretofore held that wealth\ndiscrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied\nsolely on this contention. They also assert that the State\xe2\x80\x99s system impermissibly interferes with the\nexercise of a \xe2\x80\x9cfundamental\xe2\x80\x9d right and that accordingly the prior decisions of this Court require the\napplication of the strict standard of judicial review. Shapiro v. Thompson (1969). It is this question \xe2\x80\x93\nwhether education is a fundamental right, in the sense that it is among the rights and liberties\nprotected by the Constitution \xe2\x80\x93 which has so consumed the attention of courts and commentators in\nrecent years.\n\nB\nIn Brown v. Board of Education (1954), a unanimous Court recognized that \xe2\x80\x9ceducation is perhaps the\nmost important function of state and local governments.\xe2\x80\x9d What was said there in the context of racial\ndiscrimination has lost none of its vitality with the passage of time:\n\xe2\x80\x9cCompulsory school attendance laws and the great expenditures for education both demonstrate\nour recognition of the importance of education to our democratic society. It is required in the\nperformance of our most basic public responsibilities, even service in the armed forces. It is the very\nfoundation of good citizenship. Today it is a principal instrument in awakening the child to cultural\nvalues, in preparing him for later professional training, and in helping him to adjust normally to his\nenvironment. In these days, it is doubtful that any child may reasonably be expected to succeed in life\nif he is denied the opportunity of an education. Such an opportunity, where the state has undertaken\nto provide it, is a right which must be made available to all on equal terms.\xe2\x80\x9d\nThis theme, expressing an abiding respect for the vital role of education in a free society, may be found\nin numerous opinions of Justices of this Court writing both before and after Brown was decided.\nNothing this Court holds today in any way detracts from our historic dedication to public education.\nWe are in complete agreement with the conclusion of the three-judge panel below that \xe2\x80\x9cthe grave\nsignificance of education both to the individual and to our society\xe2\x80\x9d cannot be doubted. But the\nimportance of a service performed by the State does not determine whether it must be regarded as\nfundamental for purposes of examination under the Equal Protection Clause. {discussion of cases,\nincluding Shapiro v. Thompson omitted}.\nThe lesson of these cases in addressing the question now before the Court is plain. It is not the\nprovince of this Court to create substantive constitutional rights in the name of guaranteeing equal\nprotection of the laws. Thus, the key to discovering whether education is \xe2\x80\x9cfundamental\xe2\x80\x9d is not to\nbe found in comparisons of the relative societal significance of education as opposed to subsistence\nor housing. Nor is it to be found by weighing whether education is as important as the right to\n\n372 | Liberty, Equality, and Due Process: Third Edition\n\n\x0ctravel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly\nguaranteed by the Constitution. Eisenstadt v. Baird (1972); Skinner v. Oklahoma (1942).\nEducation, of course, is not among the rights afforded explicit protection under our Federal\nConstitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the\nundisputed importance of education will not alone cause this Court to depart from the usual standard\nfor reviewing a State\xe2\x80\x99s social and economic legislation. It is appellees\xe2\x80\x99 contention, however, that\neducation is distinguishable from other services and benefits provided by the State because it bears a\npeculiarly close relationship to other rights and liberties accorded protection under the Constitution.\nSpecifically, they insist that education is itself a fundamental personal right because it is essential\nto the effective exercise of First Amendment freedoms and to intelligent utilization of the right to\nvote. In asserting a nexus between speech and education, appellees urge that the right to speak is\nmeaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively.\nThe \xe2\x80\x9cmarketplace of ideas\xe2\x80\x9d is an empty forum for those lacking basic communicative tools. Likewise,\nthey argue that the corollary right to receive information becomes little more than a hollow privilege\nwhen the recipient has not been taught to read, assimilate, and utilize available knowledge.\nA similar line of reasoning is pursued with respect to the right to vote. Exercise of the franchise, it is\ncontended, cannot be divorced from the educational foundation of the voter. The electoral process, if\nreality is to conform to the democratic ideal, depends on an informed electorate: a voter cannot cast\nhis ballot intelligently unless his reading skills and thought processes have been adequately developed.\nWe need not dispute any of these propositions. The Court has long afforded zealous protection\nagainst unjustifiable governmental interference with the individual\xe2\x80\x99s rights to speak and to vote. Yet\nwe have never presumed to possess either the ability or the authority to guarantee to the citizenry\nthe most effective speech or the most informed electoral choice. That these may be desirable goals\nof a system of freedom of expression and of a representative form of government is not to be\ndoubted. These are indeed goals to be pursued by a people whose thoughts and beliefs are freed\nfrom governmental interference. But they are not values to be implemented by judicial intrusion into\notherwise legitimate state activities.\nEven if it were conceded that some identifiable quantum of education is a constitutionally protected\nprerequisite to the meaningful exercise of either right, we have no indication that the present levels\nof educational expenditures in Texas provide an education that falls short. Whatever merit appellees\xe2\x80\x99\nargument might have if a State\xe2\x80\x99s financing system occasioned an absolute denial of educational\nopportunities to any of its children, that argument provides no basis for finding an interference with\nfundamental rights where only relative differences in spending levels are involved and where \xe2\x80\x93 as is\ntrue in the present case \xe2\x80\x93 no charge fairly could be made that the system fails to provide each child\nwith an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of\nspeech and of full participation in the political process.\nFurthermore, the logical limitations on appellees\xe2\x80\x99 nexus theory are difficult to perceive. How, for\ninstance, is education to be distinguished from the significant personal interests in the basics of\ndecent food and shelter? Empirical examination might well buttress an assumption that the ill-fed, ill-\n\nCHAPTER SIX: Fundamental Rights and Equal Protection | 373\n\n\x0cclothed, and ill-housed are among the most ineffective participants in the political process, and that\nthey derive the least enjoyment from the benefits of the First Amendment. * * * *\nWe have carefully considered each of the arguments supportive of the District Court\xe2\x80\x99s finding that\neducation is a fundamental right or liberty and have found those arguments unpersuasive. In one\nfurther respect we find this a particularly inappropriate case in which to subject state action to\nstrict judicial scrutiny. The present case, in another basic sense, is significantly different from any\nof the cases in which the Court has applied strict scrutiny to state or federal legislation touching\nupon constitutionally protected rights. Each of our prior cases involved legislation which \xe2\x80\x9cdeprived,\xe2\x80\x9d\n\xe2\x80\x9cinfringed,\xe2\x80\x9d or \xe2\x80\x9cinterfered\xe2\x80\x9d with the free exercise of some such fundamental personal right or liberty.\nSee Skinner v. Oklahoma; Shapiro v. Thompson. A critical distinction between those cases and the one\nnow before us lies in what Texas is endeavoring to do with respect to education. * * * * Every step\nleading to the establishment of the system Texas utilizes today \xe2\x80\x93 including the decisions permitting\nlocalities to tax and expend locally, and creating and continuously expanding state aid \xe2\x80\x93 was\nimplemented in an effort to extend public education and to improve its quality. Of course, every\nreform that benefits some more than others may be criticized for what it fails to accomplish. But we\nthink it plain that, in substance, the thrust of the Texas system is affirmative and reformatory and,\ntherefore, should be scrutinized under judicial principles sensitive to the nature of the State\xe2\x80\x99s efforts\nand to the rights reserved to the States under the Constitution.\n\nC\nIt should be clear, for the reasons stated above and in accord with the prior decisions of this Court,\nthat this is not a case in which the challenged state action must be subjected to the searching\njudicial scrutiny reserved for laws that create suspect classifications or impinge upon constitutionally\nprotected rights. * * * *\nThe foregoing considerations buttress our conclusion that Texas\xe2\x80\x99 system of public school finance\nis an inappropriate candidate for strict judicial scrutiny. These same considerations are relevant to\nthe determination whether that system, with its conceded imperfections, nevertheless bears some\nrational relationship to a legitimate state purpose. It is to this question that we next turn our attention.\n\nIII\nThe basic contours of the Texas school finance system have been traced at the outset of this opinion.\nWe will now describe in more detail that system and how it operates, as these facts bear directly upon\nthe demands of the Equal Protection Clause. * * * *\nIn sum, to the extent that the Texas system of school financing results in unequal expenditures\nbetween children who happen to reside in different districts, we cannot say that such disparities\nare the product of a system that is so irrational as to be invidiously discriminatory. Texas has\nacknowledged its shortcomings and has persistently endeavored \xe2\x80\x93 not without some success \xe2\x80\x93 to\n374 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cameliorate the differences in levels of expenditures without sacrificing the benefits of local\nparticipation. The Texas plan is not the result of hurried, ill-conceived legislation. It certainly is not\nthe product of purposeful discrimination against any group or class. On the contrary, it is rooted in\ndecades of experience in Texas and elsewhere, and in major part is the product of responsible studies\nby qualified people. In giving substance to the presumption of validity to which the Texas system\nis entitled, it is important to remember that at every stage of its development it has constituted a\n\xe2\x80\x9crough accommodation\xe2\x80\x9d of interests in an effort to arrive at practical and workable solutions. One\nalso must remember that the system here challenged is not peculiar to Texas or to any other State.\nIn its essential characteristics, the Texas plan for financing public education reflects what many\neducators for a half century have thought was an enlightened approach to a problem for which there\nis no perfect solution. We are unwilling to assume for ourselves a level of wisdom superior to that\nof legislators, scholars, and educational authorities in 50 States, especially where the alternatives\nproposed are only recently conceived and nowhere yet tested. The constitutional standard under the\nEqual Protection Clause is whether the challenged state action rationally furthers a legitimate state\npurpose or interest. We hold that the Texas plan abundantly satisfies this standard.\n\nIV\n* * * * The consideration and initiation of fundamental reforms with respect to state taxation and\neducation are matters reserved for the legislative processes of the various States, and we do no\nviolence to the values of federalism and separation of powers by staying our hand. We hardly need add\nthat this Court\xe2\x80\x99s action today is not to be viewed as placing its judicial imprimatur on the status quo.\nThe need is apparent for reform in tax systems which may well have relied too long and too heavily\non the local property tax. And certainly innovative thinking as to public education, its methods, and\nits funding is necessary to assure both a higher level of quality and greater uniformity of opportunity.\nThese matters merit the continued attention of the scholars who already have contributed much by\ntheir challenges. But the ultimate solutions must come from the lawmakers and from the democratic\npressures of those who elect them.\nReversed.\nMR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE DOUGLAS CONCURS, DISSENTING.\nThe Court today decides, in effect, that a State may constitutionally vary the quality of education\nwhich it offers its children in accordance with the amount of taxable wealth located in the school\ndistricts within which they reside. The majority\xe2\x80\x99s decision represents an abrupt departure from the\nmainstream of recent state and federal court decisions concerning the unconstitutionality of state\neducational financing schemes dependent upon taxable local wealth. More unfortunately, though,\nthe majority\xe2\x80\x99s holding can only be seen as a retreat from our historic commitment to equality of\neducational opportunity and as unsupportable acquiescence in a system which deprives children in\ntheir earliest years of the chance to reach their full potential as citizens. The Court does this despite\nthe absence of any substantial justification for a scheme which arbitrarily channels educational\nresources in accordance with the fortuity of the amount of taxable wealth within each district.\nCHAPTER SIX: Fundamental Rights and Equal Protection | 375\n\n\x0cIn my judgment, the right of every American to an equal start in life, so far as the provision of a\nstate service as important as education is concerned, is far too vital to permit state discrimination on\ngrounds as tenuous as those presented by this record. Nor can I accept the notion that it is sufficient\nto remit these appellees to the vagaries of the political process which, contrary to the majority\xe2\x80\x99s\nsuggestion, has proved singularly unsuited to the task of providing a remedy for this discrimination.\nI, for one, am unsatisfied with the hope of an ultimate \xe2\x80\x9cpolitical\xe2\x80\x9d solution sometime in the indefinite\nfuture while, in the meantime, countless children unjustifiably receive inferior educations that \xe2\x80\x9cmay\naffect their hearts and minds in a way unlikely ever to be undone.\xe2\x80\x9d Brown v. Board of Education (1954).\nI must therefore respectfully dissent.\n* * * * {T}he appellants and the majority may believe that the Equal Protection Clause cannot be\noffended by substantially unequal state treatment of persons who are similarly situated so long as\nthe State provides everyone with some unspecified amount of education which evidently is \xe2\x80\x9cenough.\xe2\x80\x9d\nThe basis for such a novel view is far from clear. It is, of course, true that the Constitution does not\nrequire precise equality in the treatment of all persons. * * * * But this Court has never suggested that,\nbecause some \xe2\x80\x9cadequate\xe2\x80\x9d level of benefits is provided to all, discrimination in the provision of services\nis therefore constitutionally excusable. The Equal Protection Clause is not addressed to the minimal\nsufficiency, but rather to the unjustifiable inequalities of state action. It mandates nothing less than\nthat \xe2\x80\x9call persons similarly circumstanced shall be treated alike.\xe2\x80\x9d\nEven if the Equal Protection Clause encompassed some theory of constitutional adequacy,\ndiscrimination in the provision of educational opportunity would certainly seem to be a poor\ncandidate for its application. Neither the majority nor appellants inform us how judicially manageable\nstandards are to be derived for determining how much education is \xe2\x80\x9cenough\xe2\x80\x9d to excuse constitutional\ndiscrimination. * * * *\nI must once more voice my disagreement with the Court\xe2\x80\x99s rigidified approach to equal protection\nanalysis. See Dandridge v. Williams (1970) (dissenting opinion). The Court apparently seeks to establish\ntoday that equal protection cases fall into one of two neat categories which dictate the appropriate\nstandard of review\xe2\x80\x94strict scrutiny or mere rationality. But this Court\xe2\x80\x99s decisions in the field of equal\nprotection defy such easy categorization. A principled reading of what this Court has done reveals\nthat it has applied a spectrum of standards in reviewing discrimination allegedly violative of the\nEqual Protection Clause. This spectrum clearly comprehends variations in the degree of care with\nwhich the Court will scrutinize particular classifications, depending, I believe, on the constitutional\nand societal importance of the interest adversely affected and the recognized invidiousness of the\nbasis upon which the particular classification is drawn. I find, in fact, that many of the Court\xe2\x80\x99s\nrecent decisions embody the very sort of reasoned approach to equal protection analysis for which I\npreviously argued\xe2\x80\x94that is, an approach in which \xe2\x80\x9cconcentration [is] placed upon the character of the\nclassification in question, the relative importance to individuals in the class discriminated against of\nthe governmental benefits that they do not receive, and the asserted state interests in support of the\nclassification.\xe2\x80\x9d Dandridge v. Williams (dissenting opinion).\nI therefore cannot accept the majority\xe2\x80\x99s labored efforts to demonstrate that fundamental interests,\nwhich call for strict scrutiny of the challenged classification, encompass only established rights which\nwe are somehow bound to recognize from the text of the Constitution itself. To be sure, some\n376 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cinterests which the Court has deemed to be fundamental for purposes of equal protection analysis\nare themselves constitutionally protected rights. Thus, discrimination against the guaranteed right\nof freedom of speech has called for strict judicial scrutiny. Further, every citizen\xe2\x80\x99s right to travel\ninterstate, although nowhere expressly mentioned in the Constitution, has long been recognized as\nimplicit in the premises underlying that document: the right \xe2\x80\x9cwas conceived from the beginning to\nbe a necessary concomitant of the stronger Union the Constitution created.\xe2\x80\x9d Consequently, the Court\nhas required that a state classification affecting the constitutionally protected right to travel must be\n\xe2\x80\x9cshown to be necessary to promote a compelling governmental interest.\xe2\x80\x9d Shapiro v. Thompson. But it\nwill not do to suggest that the \xe2\x80\x9canswer\xe2\x80\x9d to whether an interest is fundamental for purposes of equal\nprotection analysis is always determined by whether that interest \xe2\x80\x9cis a right . . . explicitly or implicitly\nguaranteed by the Constitution.\xe2\x80\x9d\nI would like to know where the Constitution guarantees the right to procreate, Skinner v. Oklahoma\n(1942) or the right to vote in state elections, e.g., Reynolds v. Sims (1964) or the right to an appeal\nfrom a criminal conviction, e.g., Griffin v. Illinois (1956). These are instances in which, due to the\nimportance of the interests at stake, the Court has displayed a strong concern with the existence\nof discriminatory state treatment. But the Court has never said or indicated that these are interests\nwhich independently enjoy full-blown constitutional protection.\nThus, in Buck v. Bell (1927), the Court refused to recognize a substantive constitutional guarantee\nof the right to procreate. Nevertheless, in Skinner v. Oklahoma, the Court, without impugning the\ncontinuing validity of Buck v. Bell, held that \xe2\x80\x9cstrict scrutiny\xe2\x80\x9d of state discrimination affecting\nprocreation \xe2\x80\x9cis essential,\xe2\x80\x9d for \xe2\x80\x9c[m]arriage and procreation are fundamental to the very existence and\nsurvival of the race.\xe2\x80\x9d Recently, in Roe v. Wade (1973), the importance of procreation has, indeed, been\nexplained on the basis of its intimate relationship with the constitutional right of privacy which we\nhave recognized. Yet the limited stature thereby accorded any \xe2\x80\x9cright\xe2\x80\x9d to procreate is evident from the\nfact that, at the same time, the Court reaffirmed its initial decision in Buck v. Bell. * * * *\nThe majority is, of course, correct when it suggests that the process of determining which interests\nare fundamental is a difficult one. But I do not think the problem is insurmountable. And I certainly\ndo not accept the view that the process need necessarily degenerate into an unprincipled, subjective\n\xe2\x80\x9cpicking-and-choosing\xe2\x80\x9d between various interests, or that it must involve this Court in creating\n\xe2\x80\x9csubstantive constitutional rights in the name of guaranteeing equal protection of the laws.\xe2\x80\x9d Although\nnot all fundamental interests are constitutionally guaranteed, the determination of which interests are\nfundamental should be firmly rooted in the text of the Constitution. The task in every case should be\nto determine the extent to which constitutionally guaranteed rights are dependent on interests not\nmentioned in the Constitution. As the nexus between the specific constitutional guarantee and the\nnonconstitutional interest draws closer, the nonconstitutional interest becomes more fundamental\nand the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis\nmust be adjusted accordingly. Thus, it cannot be denied that interests such as procreation, the\nexercise of the state franchise, and access to criminal appellate processes are not fully guaranteed\nto the citizen by our Constitution. But these interests have nonetheless been afforded special judicial\nconsideration in the face of discrimination because they are, to some extent, interrelated with\nconstitutional guarantees. Procreation is now understood to be important because of its interaction\nCHAPTER SIX: Fundamental Rights and Equal Protection | 377\n\n\x0cwith the established constitutional right of privacy. The exercise of the state franchise is closely tied\nto basic civil and political rights inherent in the First Amendment. And access to criminal appellate\nprocesses enhances the integrity of the range of rights implicit in the Fourteenth Amendment\nguarantee of due process of law. Only if we closely protect the related interests from state\ndiscrimination do we ultimately ensure the integrity of the constitutional guarantee itself. This is\nthe real lesson that must be taken from our previous decisions involving interests deemed to be\nfundamental. * * * *\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=39#h5p-89\n\nPlyler v. Doe\n457 U.S. 202 (1982)\nBRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH MARSHALL, BLACKMUN, POWELL, AND STEVENS, JJ.,\nJOINED. MARSHALL, J., BLACKMUN, J., AND POWELL, J., FILED {SEPARATE} CONCURRING OPINIONS. BURGER, C.J., FILED A\nDISSENTING OPINION, IN WHICH WHITE, REHNQUIST, AND O\xe2\x80\x99CONNOR, JJ., JOINED.\nJUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT.\nThe question presented by these cases is whether, consistent with the Equal Protection Clause of\nthe Fourteenth Amendment, Texas may deny to undocumented school-age children the free public\neducation that it provides to children who are citizens of the United States or legally admitted aliens.\n\nI\nSince the late 19th century, the United States has restricted immigration into this country.\nUnsanctioned entry into the United States is a crime, and those who have entered unlawfully are\nsubject to deportation. But despite the existence of these legal restrictions, a substantial number of\n\n378 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cpersons have succeeded in unlawfully entering the United States, and now live within various States,\nincluding the State of Texas.\nIn May 1975, the Texas Legislature revised its education laws to withhold from local school districts\nany state funds for the education of children who were not \xe2\x80\x9clegally admitted\xe2\x80\x9d into the United States.\nThe 1975 revision also authorized local school districts to deny enrollment in their public schools to\nchildren not \xe2\x80\x9clegally admitted\xe2\x80\x9d to the country. Tex. Educ. Code Ann. \xc2\xa7 21.031.\nThese cases involve constitutional challenges to those provisions.\nThis is a class action, filed in the United States District Court for the Eastern District of Texas in\nSeptember 1977, on behalf of certain school-age children of Mexican origin residing in Smith County,\nTex., who could not establish that they had been legally admitted into the United States. The action\ncomplained of the exclusion of plaintiff children from the public schools of the Tyler Independent\nSchool District. The Superintendent and members of the Board of Trustees of the School District\nwere named as defendants; the State of Texas intervened as a party-defendant. After certifying\na class consisting of all undocumented school-age children of Mexican origin residing within the\nSchool District, the District Court preliminarily enjoined defendants from denying a free education\nto members of the plaintiff class. In December 1977, the court conducted an extensive hearing on\nplaintiffs\xe2\x80\x99 motion for permanent injunctive relief.\nIn considering this motion, the District Court made extensive findings of fact. The court found that\nneither \xc2\xa7 21.031 nor the School District policy implementing it had \xe2\x80\x9ceither the purpose or effect of\nkeeping illegal aliens out of the State of Texas.\xe2\x80\x9d Respecting defendants\xe2\x80\x99 further claim that \xc2\xa7 21.031 was\nsimply a financial measure designed to avoid a drain on the State\xe2\x80\x99s fisc, the court recognized that the\nincreases in population resulting from the immigration of Mexican nationals into the United States\nhad created problems for the public schools of the State, and that these problems were exacerbated\nby the special educational needs of immigrant Mexican children. The court noted, however, that the\nincrease in school enrollment was primarily attributable to the admission of children who were legal\nresidents. It also found that while the \xe2\x80\x9cexclusion of all undocumented children from the public schools\nin Texas would eventually result in economies at some level funding from both the State and Federal\nGovernments was based primarily on the number of children enrolled. In net effect then, barring\nundocumented children from the schools would save money, but it would \xe2\x80\x9cnot necessarily\xe2\x80\x9d improve\n\xe2\x80\x9cthe quality of education.\xe2\x80\x9d The court further observed that the impact of \xc2\xa7 21.031 was borne primarily\nby a very small subclass of illegal aliens, \xe2\x80\x9centire families who have migrated illegally and \xe2\x80\x93 for all\npractical purposes \xe2\x80\x93 permanently to the United States.\xe2\x80\x9d Finally, the court noted that under current\nlaws and practices \xe2\x80\x9cthe illegal alien of today may well be the legal alien of tomorrow,\xe2\x80\x9d and that without\nan education, these undocumented children, \xe2\x80\x9c[a]lready disadvantaged as a result of poverty, lack of\nEnglish-speaking ability, and undeniable racial prejudices, . . . will become permanently locked into\nthe lowest socio-economic class.\xe2\x80\x9d\nThe District Court held that illegal aliens were entitled to the protection of the Equal Protection\nClause of the Fourteenth Amendment, and that \xc2\xa7 21.031 violated that Clause. Suggesting that \xe2\x80\x9cthe\nstate\xe2\x80\x99s exclusion of undocumented children from its public schools . . . may well be the type of\ninvidiously motivated state action for which the suspect classification doctrine was designed,\xe2\x80\x9d the\nCHAPTER SIX: Fundamental Rights and Equal Protection | 379\n\n\x0ccourt held that it was unnecessary to decide whether the statute would survive a \xe2\x80\x9cstrict scrutiny\xe2\x80\x9d\nanalysis because, in any event, the discrimination embodied in the statute was not supported by a\nrational basis. * * * *\nThe Court of Appeals for the Fifth Circuit upheld the District Court\xe2\x80\x99s injunction. * * * *With respect\nto equal protection, however, the Court of Appeals affirmed in all essential respects the analysis\nof the District Court, concluding that \xc2\xa7 21.031 was \xe2\x80\x9cconstitutionally infirm regardless of whether it\nwas tested using the mere rational basis standard or some more stringent test.\xe2\x80\x9d We noted probable\njurisdiction. * * * *\n\nII\nThe Fourteenth Amendment provides that \xe2\x80\x9c[n]o State shall . . . deprive any person of life, liberty,\nor property, without due process of law; nor deny to any person within its jurisdiction the equal\nprotection of the laws.\xe2\x80\x9d (Emphasis added.) Appellants argue at the outset that undocumented aliens,\nbecause of their immigration status, are not \xe2\x80\x9cpersons within the jurisdiction\xe2\x80\x9d of the State of Texas,\nand that they therefore have no right to the equal protection of Texas law. We reject this argument.\nWhatever his status under the immigration laws, an alien is surely a \xe2\x80\x9cperson\xe2\x80\x9d in any ordinary sense of\nthat term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as\n\xe2\x80\x9cpersons\xe2\x80\x9d guaranteed due process of law by the Fifth and Fourteenth Amendments. Yick Wo v. Hopkins\n(1886). * * * *\n* * * * To permit a State to employ the phrase \xe2\x80\x9cwithin its jurisdiction\xe2\x80\x9d in order to identify subclasses\nof persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to\nassure that its laws are designed and applied equally to those persons, would undermine the principal\npurpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The\nEqual Protection Clause was intended to work nothing less than the abolition of all caste-based and\ninvidious class-based legislation. That objective is fundamentally at odds with the power the State\nasserts here to classify persons subject to its laws as nonetheless excepted from its protection. * * * *\nOur conclusion that the illegal aliens who are plaintiffs in these cases may claim the benefit of the\nFourteenth Amendment\xe2\x80\x99s guarantee of equal protection only begins the inquiry. The more difficult\nquestion is whether the Equal Protection Clause has been violated by the refusal of the State of Texas\nto reimburse local school boards for the education of children who cannot demonstrate that their\npresence within the United States is lawful, or by the imposition by those school boards of the burden\nof tuition on those children. It is to this question that we now turn.\n\nIII\nThe Equal Protection Clause directs that \xe2\x80\x9call persons similarly circumstanced shall be treated alike.\xe2\x80\x9d\nBut so too, \xe2\x80\x9c[t]he Constitution does not require things which are different in fact or opinion to be\ntreated in law as though they were the same.\xe2\x80\x9d The initial discretion to determine what is \xe2\x80\x9cdifferent\xe2\x80\x9d\n380 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cand what is \xe2\x80\x9cthe same\xe2\x80\x9d resides in the legislatures of the States. A legislature must have substantial\nlatitude to establish classifications that roughly approximate the nature of the problem perceived,\nthat accommodate competing concerns both public and private, and that account for limitations on\nthe practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most\nforms of state action, we thus seek only the assurance that the classification at issue bears some fair\nrelationship to a legitimate public purpose.\nBut we would not be faithful to our obligations under the Fourteenth Amendment if we applied\nso deferential a standard to every classification. The Equal Protection Clause was intended as a\nrestriction on state legislative action inconsistent with elemental constitutional premises. Thus we\nhave treated as presumptively invidious those classifications that disadvantage a \xe2\x80\x9csuspect class,\xe2\x80\x9d or\nthat impinge upon the exercise of a \xe2\x80\x9cfundamental right.\xe2\x80\x9d With respect to such classifications, it is\nappropriate to enforce the mandate of equal protection by requiring the State to demonstrate that\nits classification has been precisely tailored to serve a compelling governmental interest. In addition,\nwe have recognized that certain forms of legislative classification, while not facially invidious,\nnonetheless give rise to recurring constitutional difficulties; in these limited circumstances we have\nsought the assurance that the classification reflects a reasoned judgment consistent with the ideal of\nequal protection by inquiring whether it may fairly be viewed as furthering a [substantial interest of\nthe State. {foonote to Craig v. Boren}. We turn to a consideration of the standard appropriate for the\nevaluation of \xc2\xa7 21.031.\n\nA\nSheer incapability or lax enforcement of the laws barring entry into this country, coupled with the\nfailure to establish an effective bar to the employment of undocumented aliens, has resulted in the\ncreation of a substantial \xe2\x80\x9cshadow population\xe2\x80\x9d of illegal migrants \xe2\x80\x93 numbering in the millions \xe2\x80\x93 within\nour borders. This situation raises the specter of a permanent caste of undocumented resident aliens,\nencouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits\nthat our society makes available to citizens and lawful residents. The existence of such an underclass\npresents most difficult problems for a Nation that prides itself on adherence to principles of equality\nunder law.\nThe children who are plaintiffs in these cases are special members of this underclass. Persuasive\narguments support the view that a State may withhold its beneficence from those whose very\npresence within the United States is the product of their own unlawful conduct. These arguments\ndo not apply with the same force to classifications imposing disabilities on the minor children of\nsuch illegal entrants. At the least, those who elect to enter our territory by stealth and in violation of\nour law should be prepared to bear the consequences, including, but not limited to, deportation. But\nthe children of those illegal entrants are not comparably situated. Their \xe2\x80\x9cparents have the ability to\nconform their conduct to societal norms,\xe2\x80\x9d and presumably the ability to remove themselves from the\nState\xe2\x80\x99s jurisdiction; but the children who are plaintiffs in these cases \xe2\x80\x9ccan affect neither their parents\xe2\x80\x99\nconduct nor their own status.\xe2\x80\x9d Even if the State found it expedient to control the conduct of adults\n\nCHAPTER SIX: Fundamental Rights and Equal Protection | 381\n\n\x0cby acting against their children, legislation directing the onus of a parent\xe2\x80\x99s misconduct against his\nchildren does not comport with fundamental conceptions of justice. * * * *\nOf course, undocumented status is not irrelevant to any proper legislative goal. Nor is undocumented\nstatus an absolutely immutable characteristic since it is the product of conscious, indeed unlawful,\naction. But \xc2\xa7 21.031 is directed against children, and imposes its discriminatory burden on the basis\nof a legal characteristic over which children can have little control. It is thus difficult to conceive of a\nrational justification for penalizing these children for their presence within the United States. Yet that\nappears to be precisely the effect of \xc2\xa7 21.031.\nPublic education is not a \xe2\x80\x9cright\xe2\x80\x9d granted to individuals by the Constitution. San Antonio Independent\nSchool Dist. v. Rodriguez (1973). But neither is it merely some governmental \xe2\x80\x9cbenefit\xe2\x80\x9d indistinguishable\nfrom other forms of social welfare legislation. Both the importance of education in maintaining our\nbasic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction.\nThe \xe2\x80\x9cAmerican people have always regarded education and [the] acquisition of knowledge as matters\nof supreme importance.\xe2\x80\x9d Meyer v. Nebraska (1923). We have recognized \xe2\x80\x9cthe public schools as a\nmost vital civic institution for the preservation of a democratic system of government,\xe2\x80\x9d and as the\nprimary vehicle for transmitting \xe2\x80\x9cthe values on which our society rests.\xe2\x80\x9d \xe2\x80\x9c[A]s . . . pointed out early in\nour history, . . . some degree of education is necessary to prepare citizens to participate effectively\nand intelligently in our open political system if we are to preserve freedom and independence.\xe2\x80\x9d\nAnd these historic \xe2\x80\x9cperceptions of the public schools as inculcating fundamental values necessary\nto the maintenance of a democratic political system have been confirmed by the observations of\nsocial scientists.\xe2\x80\x9d In addition, education provides the basic tools by which individuals might lead\neconomically productive lives to the benefit of us all. In sum, education has a fundamental role in\nmaintaining the fabric of our society. We cannot ignore the significant social costs borne by our\nNation when select groups are denied the means to absorb the values and skills upon which our social\norder rests.\nIn addition to the pivotal role of education in sustaining our political and cultural heritage, denial\nof education to some isolated group of children poses an affront to one of the goals of the Equal\nProtection Clause: the abolition of governmental barriers presenting unreasonable obstacles to\nadvancement on the basis of individual merit. Paradoxically, by depriving the children of any\ndisfavored group of an education, we foreclose the means by which that group might raise the level\nof esteem in which it is held by the majority. But more directly, \xe2\x80\x9ceducation prepares individuals to be\nself-reliant and self-sufficient participants in society.\xe2\x80\x9d Illiteracy is an enduring disability. The inability\nto read and write will handicap the individual deprived of a basic education each and every day of his\nlife. The inestimable toll of that deprivation on the social, economic, intellectual, and psychological\nwell-being of the individual, and the obstacle it poses to individual achievement, make it most difficult\nto reconcile the cost or the principle of a status-based denial of basic education with the framework\nof equality embodied in the Equal Protection Clause. What we said 28 years ago in Brown v. Board of\nEducation (1954), still holds true * * * *\n\n382 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cB\nThese well-settled principles allow us to determine the proper level of deference to be afforded\n\xc2\xa7 21.031. Undocumented aliens cannot be treated as a suspect class because their presence in this\ncountry in violation of federal law is not a \xe2\x80\x9cconstitutional irrelevancy.\xe2\x80\x9d Nor is education a fundamental\nright; a State need not justify by compelling necessity every variation in the manner in which\neducation is provided to its population. See San Antonio Independent School Dist. v. Rodriguez. But\nmore is involved in these cases than the abstract question whether \xc2\xa7 21.031 discriminates against a\nsuspect class, or whether education is a fundamental right. Section 21.031 imposes a lifetime hardship\non a discrete class of children not accountable for their disabling status. The stigma of illiteracy will\nmark them for the rest of their lives. By denying these children a basic education, we deny them\nthe ability to live within the structure of our civic institutions, and foreclose any realistic possibility\nthat they will contribute in even the smallest way to the progress of our Nation. In determining\nthe rationality of \xc2\xa7 21.031, we may appropriately take into account its costs to the Nation and to\nthe innocent children who are its victims. In light of these countervailing costs, the discrimination\ncontained in \xc2\xa7 21.031 can hardly be considered rational unless it furthers some substantial goal of the\nState.\n\nIV\nIt is the State\xe2\x80\x99s principal argument, and apparently the view of the dissenting Justices, that the\nundocumented status of these children vel non establishes a sufficient rational basis for denying them\nbenefits that a State might choose to afford other residents.\n* * * * The State may borrow the federal classification. But to justify its use as a criterion for its own\ndiscriminatory policy, the State must demonstrate that the classification is reasonably adapted to \xe2\x80\x9cthe\npurposes for which the state desires to use it.\xe2\x80\x9d We therefore turn to the state objectives that are said\nto support \xc2\xa7 21.031.\n\nV\nAppellants argue that the classification at issue furthers an interest in the \xe2\x80\x9cpreservation of the state\xe2\x80\x99s\nlimited resources for the education of its lawful residents.\xe2\x80\x9d Of course, a concern for the preservation\nof resources standing alone can hardly justify the classification used in allocating those resources.\nThe State must do more than justify its classification with a concise expression of an intention to\ndiscriminate. Apart from the asserted state prerogative to act against undocumented children solely\non the basis of their undocumented status \xe2\x80\x93 an asserted prerogative that carries only minimal force\nin the circumstances of these cases \xe2\x80\x93 we discern three colorable state interests that might support\n\xc2\xa7 21.031.\nFirst, appellants appear to suggest that the State may seek to protect itself from an influx of illegal\nimmigrants. While a State might have an interest in mitigating the potentially harsh economic effects\nCHAPTER SIX: Fundamental Rights and Equal Protection | 383\n\n\x0cof sudden shifts in population, \xc2\xa7 21.031 hardly offers an effective method of dealing with an urgent\ndemographic or economic problem. There is no evidence in the record suggesting that illegal entrants\nimpose any significant burden on the State\xe2\x80\x99s economy. To the contrary, the available evidence\nsuggests that illegal aliens underutilize public services, while contributing their labor to the local\neconomy and tax money to the state fisc. The dominant incentive for illegal entry into the State\nof Texas is the availability of employment; few if any illegal immigrants come to this country, or\npresumably to the State of Texas, in order to avail themselves of a free education. * * * *\nSecond, while it is apparent that a State may \xe2\x80\x9cnot . . . reduce expenditures for education by barring\n[some arbitrarily chosen class of] children from its schools,\xe2\x80\x9d Shapiro v. Thompson (1969), appellants\nsuggest that undocumented children are appropriately singled out for exclusion because of the special\nburdens they impose on the State\xe2\x80\x99s ability to provide high-quality public education. But the record in\nno way supports the claim that exclusion of undocumented children is likely to improve the overall\nquality of education in the State. * * * * Of course, even if improvement in the quality of education\nwere a likely result of barring some number of children from the schools of the State, the State must\nsupport its selection of this group as the appropriate target for exclusion. In terms of educational\ncost and need, however, undocumented children are \xe2\x80\x9cbasically indistinguishable\xe2\x80\x9d from legally resident\nalien children.\nFinally, appellants suggest that undocumented children are appropriately singled out because their\nunlawful presence within the United States renders them less likely than other children to remain\nwithin the boundaries of the State, and to put their education to productive social or political use\nwithin the State. Even assuming that such an interest is legitimate, it is an interest that is most\ndifficult to quantify. The State has no assurance that any child, citizen or not, will employ the\neducation provided by the State within the confines of the State\xe2\x80\x99s borders. In any event, the record\nis clear that many of the undocumented children disabled by this classification will remain in this\ncountry indefinitely, and that some will become lawful residents or citizens of the United States. It\nis difficult to understand precisely what the State hopes to achieve by promoting the creation and\nperpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and\ncosts of unemployment, welfare, and crime. It is thus clear that whatever savings might be achieved\nby denying these children an education, they are wholly insubstantial in light of the costs involved to\nthese children, the State, and the Nation.\n\nVI\nIf the State is to deny a discrete group of innocent children the free public education that it offers to\nother children residing within its borders, that denial must be justified by a showing that it furthers\nsome substantial state interest. No such showing was made here. Accordingly, the judgment of the\nCourt of Appeals in each of these cases is Affirmed.\n\n384 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cJUSTICE BLACKMUN, CONCURRING.\nI join the opinion and judgment of the Court. * * * * I write separately, however, because in my view\nthe nature of the interest at stake is crucial to the proper resolution of these cases.\nThe \xe2\x80\x9cfundamental rights\xe2\x80\x9d aspect of the Court\xe2\x80\x99s equal protection analysis \xe2\x80\x93 the now-familiar concept\nthat governmental classifications bearing on certain interests must be closely scrutinized \xe2\x80\x93 has been\nthe subject of some controversy. Justice Harlan, for example, warned that \xe2\x80\x9c[v]irtually every state\nstatute affects important rights. . . . [T]o extend the \xe2\x80\x98compelling interest\xe2\x80\x99 rule to all cases in which such\nrights are affected would go far toward making this Court a \xe2\x80\x98super-legislature.\xe2\x80\x99\xe2\x80\x9d Shapiro v. Thompson\n(1969) (dissenting opinion). Others have noted that strict scrutiny under the Equal Protection Clause\nis unnecessary when classifications infringing enumerated constitutional rights are involved, for \xe2\x80\x9ca\nstate law that impinges upon a substantive right or liberty created or conferred by the Constitution\nis, of course, presumptively invalid, whether or not the law\xe2\x80\x99s purpose or effect is to create any\nclassifications.\xe2\x80\x9d San Antonio Independent School Dist. v. Rodriguez (1973) (Stewart, J., concurring). Still\nothers have suggested that fundamental rights are not properly a part of equal protection analysis at\nall, because they are unrelated to any defined principle of equality.\nThese considerations, combined with doubts about the judiciary\xe2\x80\x99s ability to make fine distinctions in\nassessing the effects of complex social policies, led the Court in Rodriguez to articulate a firm rule:\nfundamental rights are those that \xe2\x80\x9cexplicitly or implicitly [are] guaranteed by the Constitution.\xe2\x80\x9d It\ntherefore squarely rejected the notion that \xe2\x80\x9can ad hoc determination as to the social or economic\nimportance\xe2\x80\x9d of a given interest is relevant to the level of scrutiny accorded classifications involving\nthat interest, and made clear that \xe2\x80\x9c[i]t is not the province of this Court to create substantive\nconstitutional rights in the name of guaranteeing equal protection of the laws.\xe2\x80\x9d\nI joined Justice Powell\xe2\x80\x99s opinion for the Court in Rodriguez, and I continue to believe that it provides\nthe appropriate model for resolving most equal protection disputes. Classifications infringing\nsubstantive constitutional rights necessarily will be invalid, if not by force of the Equal Protection\nClause, then through operation of other provisions of the Constitution. Conversely, classifications\nbearing on nonconstitutional interests \xe2\x80\x93 even those involving \xe2\x80\x9cthe most basic economic needs of\nimpoverished human beings,\xe2\x80\x9d Dandridge v. Williams (1970) \xe2\x80\x93 generally are not subject to special\ntreatment under the Equal Protection Clause, because they are not distinguishable in any relevant way\nfrom other regulations in \xe2\x80\x9cthe area of economics and social welfare.\xe2\x80\x9d\nWith all this said, however, I believe the Court\xe2\x80\x99s experience has demonstrated that the Rodriguez\nformulation does not settle every issue of \xe2\x80\x9cfundamental rights\xe2\x80\x9d arising under the Equal Protection\nClause. Only a pedant would insist that there are no meaningful distinctions among the multitude\nof social and political interests regulated by the States, and Rodriguez does not stand for quite so\nabsolute a proposition. To the contrary, Rodriguez implicitly acknowledged that certain interests,\nthough not constitutionally guaranteed, must be accorded a special place in equal protection analysis.\nThus, the Court\xe2\x80\x99s decisions long have accorded strict scrutiny to classifications bearing on the right\nto vote in state elections * * * * In other words, the right to vote is accorded extraordinary treatment\nbecause it is, in equal protection terms, an extraordinary right: a citizen cannot hope to achieve any\nmeaningful degree of individual political equality if granted an inferior right of participation in the\nCHAPTER SIX: Fundamental Rights and Equal Protection | 385\n\n\x0cpolitical process. Those denied the vote are relegated, by state fiat, in a most basic way to secondclass status.\nIt is arguable, of course, that the Court never should have applied fundamental rights doctrine in the\nfashion outlined above. * * * * But it is too late to debate that point, and I believe that accepting the\nprinciple of the voting cases \xe2\x80\x93 the idea that state classifications bearing on certain interests pose\nthe risk of allocating rights in a fashion inherently contrary to any notion of \xe2\x80\x9cequality\xe2\x80\x9d \xe2\x80\x93 dictates the\noutcome here. * * * *\nIn my view, when the State provides an education to some and denies it to others, it immediately\nand inevitably creates class distinctions of a type fundamentally inconsistent with those purposes,\nmentioned above, of the Equal Protection Clause. Children denied an education are placed at a\npermanent and insurmountable competitive disadvantage, for an uneducated child is denied even the\nopportunity to achieve. And when those children are members of an identifiable group, that group \xe2\x80\x93\nthrough the State\xe2\x80\x99s action \xe2\x80\x93 will have been converted into a discrete underclass. Other benefits\nprovided by the State, such as housing and public assistance, are of course important; to an individual\nin immediate need, they may be more desirable than the right to be educated. But classifications\ninvolving the complete denial of education are in a sense unique, for they strike at the heart of equal\nprotection values by involving the State in the creation of permanent class distinctions. In a sense,\nthen, denial of an education is the analogue of denial of the right to vote: the former relegates the\nindividual to second-class social status; the latter places him at a permanent political disadvantage.\nThis conclusion is fully consistent with Rodriguez. The Court there reserved judgment on the\nconstitutionality of a state system that \xe2\x80\x9coccasioned an absolute denial of educational opportunities to\nany of its children,\xe2\x80\x9d noting that \xe2\x80\x9cno charge fairly could be made that the system [at issue in Rodriguez]\nfails to provide each child with an opportunity to acquire . . . basic minimal skills.\xe2\x80\x9d And it cautioned\nthat in a case \xe2\x80\x9cinvolv[ing] the most persistent and difficult questions of educational policy, . . . [the]\nCourt\xe2\x80\x99s lack of specialized knowledge and experience counsels against premature interference with\nthe informed judgments made at the state and local levels.\xe2\x80\x9d Thus Rodriguez held, and the Court now\nreaffirms, that \xe2\x80\x9ca State need not justify by compelling necessity every variation in the manner in which\neducation is provided to its population.\xe2\x80\x9d Similarly, it is undeniable that education is not a \xe2\x80\x9cfundamental\nright\xe2\x80\x9d in the sense that it is constitutionally guaranteed. Here, however, the State has undertaken\nto provide an education to most of the children residing within its borders. And, in contrast to the\nsituation in Rodriguez, it does not take an advanced degree to predict the effects of a complete\ndenial of education upon those children targeted by the State\xe2\x80\x99s classification. In such circumstances,\nthe voting decisions suggest that the State must offer something more than a rational basis for its\nclassification. * * * *\nJUSTICE MARSHALL, CONCURRING.\nWhile I join the Court opinion, I do so without in any way retreating from my opinion in San Antonio\nIndependent School District v. Rodriguez (dissenting opinion). I continue to believe that an individual\xe2\x80\x99s\ninterest in education is fundamental, and that this view is amply supported \xe2\x80\x9cby the unique status\n\n386 | Liberty, Equality, and Due Process: Third Edition\n\n\x0caccorded public education by our society, and by the close relationship between education and some\nof our most basic constitutional values.\xe2\x80\x9d * * * *\nJUSTICE POWELL, CONCURRING.\nI join the opinion of the Court, and write separately to emphasize the unique character of the cases\nbefore us.\nThe classification in question severely disadvantages children who are the victims of a combination\nof circumstances. Access from Mexico into this country, across our 2,000-mile border, is readily\navailable and virtually uncontrollable. * * * * I agree with the Court that their children should not be\nleft on the streets uneducated.\nAlthough the analogy is not perfect, our holding today does find support in decisions of this Court\nwith respect to the status of illegitimates. * * * *\nCHIEF JUSTICE BURGER, WITH WHOM JUSTICE WHITE, JUSTICE REHNQUIST, AND JUSTICE O\xe2\x80\x99CONNOR JOIN, DISSENTING.\nWere it our business to set the Nation\xe2\x80\x99s social policy, I would agree without hesitation that it\nis senseless for an enlightened society to deprive any children \xe2\x80\x93 including illegal aliens \xe2\x80\x93 of an\nelementary education. I fully agree that it would be folly \xe2\x80\x93 and wrong \xe2\x80\x93 to tolerate creation of a\nsegment of society made up of illiterate persons, many having a limited or no command of our\nlanguage. However, the Constitution does not constitute us as \xe2\x80\x9cPlatonic Guardians\xe2\x80\x9d nor does it vest\nin this Court the authority to strike down laws because they do not meet our standards of desirable\nsocial policy, \xe2\x80\x9cwisdom,\xe2\x80\x9d or \xe2\x80\x9ccommon sense.\xe2\x80\x9d We trespass on the assigned function of the political\nbranches under our structure of limited and separated powers when we assume a policymaking role\nas the Court does today. * * * *\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=39#h5p-90\n\nNotes\n1. Be prepared to discuss all of the challenges that the plaintiffs in San Antonio Independent School\nDistrict v. Rodriguez would make.\n\nCHAPTER SIX: Fundamental Rights and Equal Protection | 387\n\n\x0c2. A state constitutional law \xe2\x80\x9csequel\xe2\x80\x9d to San Antonio is Edgewood Independent Sch. Dist. v. Kirby\ndiscussed in Chapter Twelve.\n3. Be prepared to discuss the \xe2\x80\x9cdoor\xe2\x80\x9d that San Antonio leaves open that is apparent in Plyler v. Doe.\n\nII. Voting\nReynolds v. Sims\n377 U.S. 533 (1964)\nWARREN, C.J., DELIVERED THE OPINION OF THE COURT, JOINED BY BLACK, DOUGLAS, BRENNAN, WHITE, AND\nGOLDBERG, J.J. CLARK, J. AND STEWART, J., FILED CONCURRING OPINIONS. HARLAN, J., FILED A DISSENTING OPINION.\nMR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT.\nInvolved in these cases are an appeal and two cross-appeals from a decision of the Federal District\nCourt for the Middle District of Alabama holding invalid, under the Equal Protection Clause of the\nFederal Constitution, the existing and two legislatively proposed plans for the apportionment of seats\nin the two houses of the Alabama Legislature, and ordering into effect a temporary reapportionment\nplan comprised of parts of the proposed but judicially disapproved measures.\n\nI\nOn August 26, 1961, the original plaintiffs (appellees in No. 23), residents, taxpayers and voters of\nJefferson County, Alabama, filed a complaint in the United States District Court for the Middle District\nof Alabama, in their own behalf and on behalf of all similarly situated Alabama voters, challenging\nthe apportionment of the Alabama Legislature. Defendants below (appellants in No. 23), sued in\ntheir representative capacities, were various state and political party officials charged with the\nperformance of certain duties in connection with state elections. The complaint alleged a deprivation\nof rights under the Alabama Constitution and under the Equal Protection Clause of the Fourteenth\nAmendment * * * *\n{The Alabama legislature had both a House and a Senate, with 106 and 35 representatives respectively\nfor the 67 counties. Because of population disparities, some Senate districts had large populations\nwhile other Senate districts had small populations, with a disparity of 41-1. The Legislature\xe2\x80\x99s failure to\nreapportion and its subsequent reapportion plans that maintained the disparity were challenged.}\n\n388 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cII\nUndeniably the Constitution of the United States protects the right of all qualified citizens to vote,\nin state as well as in federal elections. A consistent line of decisions by this Court in cases involving\nattempts to deny or restrict the right of suffrage has made this indelibly clear. It has been repeatedly\nrecognized that all qualified voters have a constitutionally protected right to vote. The Court stated\nthat it is \xe2\x80\x9cas equally unquestionable that the right to have one\xe2\x80\x99s vote counted is as open to\nprotection . . . as the right to put a ballot in a box.\xe2\x80\x9d The right to vote can neither be denied outright, nor\ndestroyed by alteration of ballots, nor diluted by ballot-box stuffing. As the Court stated, \xe2\x80\x9cObviously\nincluded within the right to choose, secured by the Constitution, is the right of qualified voters\nwithin a state to cast their ballots and have them counted . . . .\xe2\x80\x9d Racially based gerrymandering and the\nconducting of white primaries, both of which result in denying to some citizens their right to vote,\nhave been held to be constitutionally impermissible. And history has seen a continuing expansion of\nthe scope of the right of suffrage in this country. The right to vote freely for the candidate of one\xe2\x80\x99s\nchoice is of the essence of a democratic society, and any restrictions on that right strike at the heart of\nrepresentative government. And the right of suffrage can be denied by a debasement or dilution of the\nweight of a citizen\xe2\x80\x99s vote just as effectively as by wholly prohibiting the free exercise of the franchise.\n* * * * {A} fundamental principle of representative government in this country is one of equal\nrepresentation for equal numbers of people, without regard to race, sex, economic status, or place of\nresidence within a State. Our problem, then, is to ascertain, in the instant cases, whether there are\nany constitutionally cognizable principles which would justify departures from the basic standard of\nequality among voters in the apportionment of seats in state legislatures.\n\nIII\nA predominant consideration in determining whether a State\xe2\x80\x99s legislative apportionment scheme\nconstitutes an invidious discrimination violative of rights asserted under the Equal Protection Clause\nis that the rights allegedly impaired are individual and personal in nature. * * * * While the result of\na court decision in a state legislative apportionment controversy may be to require the restructuring\nof the geographical distribution of seats in a state legislature, the judicial focus must be concentrated\nupon ascertaining whether there has been any discrimination against certain of the State\xe2\x80\x99s citizens\nwhich constitutes an impermissible impairment of their constitutionally protected right to vote.\nLike Skinner v. Oklahoma (1942), such a case \xe2\x80\x9ctouches a sensitive and important area of human\nrights,\xe2\x80\x9d and \xe2\x80\x9cinvolves one of the basic civil rights of man,\xe2\x80\x9d presenting questions of alleged \xe2\x80\x9cinvidious\ndiscriminations . . . against groups or types of individuals in violation of the constitutional guaranty\nof just and equal laws.\xe2\x80\x9d Undoubtedly, the right of suffrage is a fundamental matter in a free and\ndemocratic society. Especially since the right to exercise the franchise in a free and unimpaired\nmanner is preservative of other basic civil and political rights, any alleged infringement of the right\nof citizens to vote must be carefully and meticulously scrutinized. Almost a century ago, in Yick Wo\nv. Hopkins, the Court referred to \xe2\x80\x9cthe political franchise of voting\xe2\x80\x9d as \xe2\x80\x9ca fundamental political right,\nbecause preservative of all rights.\xe2\x80\x9d\nCHAPTER SIX: Fundamental Rights and Equal Protection | 389\n\n\x0cLegislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities\nor economic interests. As long as ours is a representative form of government, and our legislatures\nare those instruments of government elected directly by and directly representative of the people,\nthe right to elect legislators in a free and unimpaired fashion is a bedrock of our political system. It\ncould hardly be gainsaid that a constitutional claim had been asserted by an allegation that certain\notherwise qualified voters had been entirely prohibited from voting for members of their state\nlegislature. And, if a State should provide that the votes of citizens in one part of the State should be\ngiven two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it\ncould hardly be contended that the right to vote of those residing in the disfavored areas had not been\neffectively diluted. It would appear extraordinary to suggest that a State could be constitutionally\npermitted to enact a law providing that certain of the State\xe2\x80\x99s voters could vote two, five, or 10\ntimes for their legislative representatives, while voters living elsewhere could vote only once. And\nit is inconceivable that a state law to the effect that, in counting votes for legislators, the votes of\ncitizens in one part of the State would be multiplied by two, five, or 10, while the votes of persons in\nanother area would be counted only at face value, could be constitutionally sustainable. Of course,\nthe effect of state legislative districting schemes which give the same number of representatives\nto unequal numbers of constituents is identical. Overweighting and overvaluation of the votes of\nthose living here has the certain effect of dilution and undervaluation of the votes of those living\nthere. The resulting discrimination against those individual voters living in disfavored areas is easily\ndemonstrable mathematically. Their right to vote is simply not the same right to vote as that of those\nliving in a favored part of the State. Two, five, or 10 of them must vote before the effect of their\nvoting is equivalent to that of their favored neighbor. Weighting the votes of citizens differently, by\nany method or means, merely because of where they happen to reside, hardly seems justifiable. One\nmust be ever aware that the Constitution forbids \xe2\x80\x9csophisticated as well as simple-minded modes of\ndiscrimination.\xe2\x80\x9d * * * *\nState legislatures are, historically, the fountainhead of representative government in this country.\nA number of them have their roots in colonial times, and substantially antedate the creation of\nour Nation and our Federal Government. In fact, the first formal stirrings of American political\nindependence are to be found, in large part, in the views and actions of several of the colonial\nlegislative bodies. With the birth of our National Government, and the adoption and ratification of the\nFederal Constitution, state legislatures retained a most important place in our Nation\xe2\x80\x99s governmental\nstructure. But representative government is in essence self-government through the medium of\nelected representatives of the people, and each and every citizen has an inalienable right to full and\neffective participation in the political processes of his State\xe2\x80\x99s legislative bodies. Most citizens can\nachieve this participation only as qualified voters through the election of legislators to represent\nthem. Full and effective participation by all citizens in state government requires, therefore, that each\ncitizen have an equally effective voice in the election of members of his state legislature. Modern and\nviable state government needs, and the Constitution demands, no less.\nLogically, in a society ostensibly grounded on representative government, it would seem reasonable\nthat a majority of the people of a State could elect a majority of that State\xe2\x80\x99s legislators. To conclude\ndifferently, and to sanction minority control of state legislative bodies, would appear to deny majority\nrights in a way that far surpasses any possible denial of minority rights that might otherwise be\n390 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cthought to result. Since legislatures are responsible for enacting laws by which all citizens are to\nbe governed, they should be bodies which are collectively responsive to the popular will. And the\nconcept of equal protection has been traditionally viewed as requiring the uniform treatment of\npersons standing in the same relation to the governmental action questioned or challenged. With\nrespect to the allocation of legislative representation, all voters, as citizens of a State, stand in\nthe same relation regardless of where they live. Any suggested criteria for the differentiation of\ncitizens are insufficient to justify any discrimination, as to the weight of their votes, unless relevant\nto the permissible purposes of legislative apportionment. Since the achieving of fair and effective\nrepresentation for all citizens is concededly the basic aim of legislative apportionment, we conclude\nthat the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the\nelection of state legislators. Diluting the weight of votes because of place of residence impairs basic\nconstitutional rights under the Fourteenth Amendment just as much as invidious discriminations\nbased upon factors such as race, Brown v. Board of Education. * * * * Our constitutional system amply\nprovides for the protection of minorities by means other than giving them majority control of state\nlegislatures. And the democratic ideals of equality and majority rule, which have served this Nation so\nwell in the past, are hardly of any less significance for the present and the future.\nWe are told that the matter of apportioning representation in a state legislature is a complex and\nmany-faceted one. We are advised that States can rationally consider factors other than population\nin apportioning legislative representation. We are admonished not to restrict the power of the States\nto impose differing views as to political philosophy on their citizens. We are cautioned about the\ndangers of entering into political thickets and mathematical quagmires. Our answer is this: a denial of\nconstitutionally protected rights demands judicial protection; our oath and our office require no less\nof us. * * * *\nTo the extent that a citizen\xe2\x80\x99s right to vote is debased, he is that much less a citizen. The fact that an\nindividual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of\nhis vote. The complexions of societies and civilizations change, often with amazing rapidity. A nation\nonce primarily rural in character becomes predominantly urban. Representation schemes once fair\nand equitable become archaic and outdated. But the basic principle of representative government\nremains, and must remain, unchanged \xe2\x80\x93 the weight of a citizen\xe2\x80\x99s vote cannot be made to depend on\nwhere he lives. Population is, of necessity, the starting point for consideration and the controlling\ncriterion for judgment in legislative apportionment controversies. A citizen, a qualified voter, is no\nmore nor no less so because he lives in the city or on the farm. This is the clear and strong command\nof our Constitution\xe2\x80\x99s Equal Protection Clause. This is an essential part of the concept of a government\nof laws and not men. This is at the heart of Lincoln\xe2\x80\x99s vision of \xe2\x80\x9cgovernment of the people, by the\npeople, [and] for the people.\xe2\x80\x9d The Equal Protection Clause demands no less than substantially equal\nstate legislative representation for all citizens, of all places as well as of all races.\n\nIV\nWe hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats\nin both houses of a bicameral state legislature must be apportioned on a population basis. Simply\nCHAPTER SIX: Fundamental Rights and Equal Protection | 391\n\n\x0cstated, an individual\xe2\x80\x99s right to vote for state legislators is unconstitutionally impaired when its weight\nis in a substantial fashion diluted when compared with votes of citizens living in other parts of the\nState. Since, under neither the existing apportionment provisions nor either of the proposed plans\nwas either of the houses of the Alabama Legislature apportioned on a population basis, the District\nCourt correctly held that all three of these schemes were constitutionally invalid. * * * *\n* * * * Much has been written * * * * about the applicability of the so-called federal analogy to state\nlegislative apportionment arrangements. After considering the matter, the court below concluded\nthat no conceivable analogy could be drawn between the federal scheme and the apportionment of\nseats in the Alabama Legislature under the proposed constitutional amendment. We agree with the\nDistrict Court, and find the federal analogy inapposite and irrelevant to state legislative districting\nschemes. Attempted reliance on the federal analogy appears often to be little more than an after-thefact rationalization offered in defense of maladjusted state apportionment arrangements. * * * *\nThe system of representation in the two Houses of the Federal Congress is one ingrained in our\nConstitution, as part of the law of the land. It is one conceived out of compromise and concession\nindispensable to the establishment of our federal republic. Arising from unique historical\ncircumstances, it is based on the consideration that in establishing our type of federalism a group of\nformerly independent States bound themselves together under one national government. Admittedly,\nthe original 13 States surrendered some of their sovereignty in agreeing to join together \xe2\x80\x9cto form a\nmore perfect Union.\xe2\x80\x9d But at the heart of our constitutional system remains the concept of separate\nand distinct governmental entities which have delegated some, but not all, of their formerly held\npowers to the single national government. The fact that almost three-fourths of our present States\nwere never in fact independently sovereign does not detract from our view that the so-called federal\nanalogy is inapplicable as a sustaining precedent for state legislative apportionments. The developing\nhistory and growth of our republic cannot cloud the fact that, at the time of the inception of the\nsystem of representation in the Federal Congress, a compromise between the larger and smaller\nStates on this matter averted a deadlock in the Constitutional Convention which had threatened to\nabort the birth of our Nation. * * * *\nPolitical subdivisions of States \xe2\x80\x93 counties, cities, or whatever \xe2\x80\x93 never were and never have been\nconsidered as sovereign entities. Rather, they have been traditionally regarded as subordinate\ngovernmental instrumentalities created by the State to assist in the carrying out of state\ngovernmental functions. * * * *The relationship of the States to the Federal Government could hardly\nbe less analogous.\nThus, we conclude that the plan contained in the 67-Senator Amendment for apportioning seats in\nthe Alabama Legislature cannot be sustained by recourse to the so-called federal analogy. Nor can any\nother inequitable state legislative apportionment scheme be justified on such an asserted basis. This\ndoes not necessarily mean that such a plan is irrational or involves something other than a \xe2\x80\x9crepublican\nform of government.\xe2\x80\x9d We conclude simply that such a plan is impermissible for the States under the\nEqual Protection Clause, since perforce resulting, in virtually every case, in submergence of the equalpopulation principle in at least one house of a state legislature.\nSince we find the so-called federal analogy inapposite to a consideration of the constitutional validity\n392 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cof state legislative apportionment schemes, we necessarily hold that the Equal Protection Clause\nrequires both houses of a state legislature to be apportioned on a population basis. The right of a\ncitizen to equal representation and to have his vote weighted equally with those of all other citizens\nin the election of members of one house of a bicameral state legislature would amount to little if\nStates could effectively submerge the equal-population principle in the apportionment of seats in the\nother house. * * * * In summary, we can perceive no constitutional difference, with respect to the\ngeographical distribution of state legislative representation, between the two houses of a bicameral\nstate legislature.\n****\n\nV\xe2\x80\x93IX\n{discussing specific plans and remedies; omitted}\n\nX\nWe find, therefore, that the action taken by the District Court in this case, in ordering into effect\na reapportionment of both houses of the Alabama Legislature for purposes of the 1962 primary and\ngeneral elections, by using the best parts of the two proposed plans which it had found, as a whole,\nto be invalid, was an appropriate and well-considered exercise of judicial power * * * * we affirm the\njudgment below and remand the cases for further proceedings consistent with the views stated in this\nopinion.\nIt is so ordered.\n\nHarper v. Virginia Board of Elections\n383 U.S. 663 (1966)\nJUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. JUSTICE BLACK, FILED A DISSENTING OPINION. JUSTICE\nHARLAN, FILED A DISSENTING OPINION, JOINED BY JUSTICE STEWART.\nJUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT.\nThese are suits by Virginia residents to have declared unconstitutional Virginia\xe2\x80\x99s poll tax. The threejudge District Court, feeling bound by our decision in Breedlove v. Suttles (1937) dismissed the\ncomplaint. The cases came here on appeal and we noted probable jurisdiction.\n\nCHAPTER SIX: Fundamental Rights and Equal Protection | 393\n\n\x0cWhile the right to vote in federal elections is conferred by Art. I, \xc2\xa7 2, of the Constitution the right\nto vote in state elections is nowhere expressly mentioned. It is argued that the right to vote in state\nelections is implicit, particularly by reason of the First Amendment and that it may not constitutionally\nbe conditioned upon the payment of a tax or fee. We do not stop to canvass the relation between\nvoting and political expression. For it is enough to say that once the franchise is granted to the\nelectorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the\nFourteenth Amendment. That is to say, the right of suffrage \xe2\x80\x9cis subject to the imposition of state\nstandards which are not discriminatory and which do not contravene any restriction that Congress,\nacting pursuant to its constitutional powers, has imposed.\xe2\x80\x9d Lassiter v. Northampton Election Board\n(1959). We were speaking there of a state literacy test which we sustained, warning that the result\nwould be different if a literacy test, fair on its face, were used to discriminate against a class. But\nthe Lassiter case does not govern the result here, because, unlike a poll tax, the \xe2\x80\x9cability to read and\nwrite . . . has some relation to standards designed to promote intelligent use of the ballot.\xe2\x80\x9d\nWe conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment\nwhenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter\nqualifications have no relation to wealth nor to paying or not paying this or any other tax. Our cases\ndemonstrate that the Equal Protection Clause of the Fourteenth Amendment restrains the States\nfrom fixing voter qualifications which invidiously discriminate. Thus without questioning the power\nof a State to impose reasonable residence restrictions on the availability of the ballot, we held in\nCarrington v. Rash (1969), that a State may not deny the opportunity to vote to a bona fide resident\nmerely because he is a member of the armed services. \xe2\x80\x9cBy forbidding a soldier ever to controvert\nthe presumption of non-residence, the Texas Constitution imposes an invidious discrimination in\nviolation of the Fourteenth Amendment. * * * * We think the same must be true of requirements of\nwealth or affluence or payment of a fee.\nLong ago in Yick Wo v. Hopkins (1886) the Court referred to \xe2\x80\x9cthe political franchise of voting\xe2\x80\x9d as\na \xe2\x80\x9cfundamental political right, because preservative of all rights.\xe2\x80\x9d Recently in Reynolds v. Sims, we\nsaid, \xe2\x80\x9cUndoubtedly, the right of suffrage is a fundamental matter in a free and democratic society.\nEspecially since the right to exercise the franchise in a free and unimpaired manner is preservative of\nother basic civil and political rights, any alleged infringement of the right of citizens to vote must be\ncarefully and meticulously scrutinized.\xe2\x80\x9d There we were considering charges that voters in one part of\nthe State had greater representation per person in the State Legislature than voters in another part of\nthe State. We concluded:\nA citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm.\nThis is the clear and strong command of our Constitution\xe2\x80\x99s Equal Protection Clause. This is\nan essential part of the concept of a government of laws and not men. This is at the heart of\nLincoln\xe2\x80\x99s vision of \xe2\x80\x98government of the people, by the people, [and] for the people.\xe2\x80\x99 The Equal\nProtection Clause demands no less than substantially equal state legislative representation for\nall citizens, of all places as well as of all races.\nWe say the same whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing\nat all, pays the fee or fails to pay it. The principle that denies the State the right to dilute a citizen\xe2\x80\x99s\n394 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cvote on account of his economic status or other such factors by analogy bars a system which excludes\nthose unable to pay a fee to vote or who fail to pay.\nIt is argued that a State may exact fees from citizens for many different kinds of licenses; that if it\ncan demand from all an equal fee for a driver\xe2\x80\x99s license, it can demand from all an equal poll tax for\nvoting. But we must remember that the interest of the State, when it comes to voting, is limited to\nthe power to fix qualifications. Wealth, like race, creed, or color, is not germane to one\xe2\x80\x99s ability to\nparticipate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like\nthose of race are traditionally disfavored. To introduce wealth or payment of a fee as a measure of a\nvoter\xe2\x80\x99s qualifications is to introduce a capricious or irrelevant factor. The degree of the discrimination\nis irrelevant. In this context \xe2\x80\x93 that is, as a condition of obtaining a ballot \xe2\x80\x93 the requirement of fee\npaying causes an \xe2\x80\x9cinvidious\xe2\x80\x9d discrimination that runs afoul of the Equal Protection Clause. Levy \xe2\x80\x9cby\nthe poll,\xe2\x80\x9d as stated in Breedlove v. Suttles is an old familiar form of taxation; and we say nothing to\nimpair its validity so long as it is not made a condition to the exercise of the franchise. Breedlove v.\nSuttles sanctioned its use as \xe2\x80\x9ca prerequisite of voting.\xe2\x80\x9d To that extent the Breedlove case is overruled.\nWe agree, of course, with Mr. Justice Holmes that the Due Process Clause of the Fourteenth\nAmendment \xe2\x80\x9cdoes not enact Mr. Herbert Spencer\xe2\x80\x99s Social Statics\xe2\x80\x9d (Lochner v. New York (1905)).\nLikewise, the Equal Protection Clause is not shackled to the political theory of a particular era. In\ndetermining what lines are unconstitutionally discriminatory, we have never been confined to historic\nnotions of equality, any more than we have restricted due process to a fixed catalogue of what was\nat a given time deemed to be the limits of fundamental rights. Notions of what constitutes equal\ntreatment for purposes of the Equal Protection Clause do change. This Court in 1896 held that laws\nproviding for separate public facilities for white and Negro citizens did not deprive the latter of the\nequal protection and treatment that the Fourteenth Amendment commands. Plessy v. Ferguson. Seven\nof the eight Justices then sitting subscribed to the Court\xe2\x80\x99s opinion, thus joining in expressions of what\nconstituted unequal and discriminatory treatment that sound strange to a contemporary ear. When,\nin 1954 \xe2\x80\x93 more than a half-century later \xe2\x80\x93 we repudiated the \xe2\x80\x9cseparate-but-equal\xe2\x80\x9d doctrine of Plessy as\nrespects public education we stated: \xe2\x80\x9cIn approaching this problem, we cannot turn the clock back to\n1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.\xe2\x80\x9d Brown\nv. Board of Education (1954).\nIn a recent searching re-examination of the Equal Protection Clause, we held, as already noted, that\n\xe2\x80\x9cthe opportunity for equal participation by all voters in the election of state legislators\xe2\x80\x9d is required.\nReynolds v. Sims. We decline to qualify that principle by sustaining this poll tax. Our conclusion, like\nthat in Reynolds v. Sims, is founded not on what we think governmental policy should be, but on what\nthe Equal Protection Clause requires.\nWe have long been mindful that where fundamental rights and liberties are asserted under the Equal\nProtection Clause, classifications which might invade or restrain them must be closely scrutinized and\ncarefully confined.\nThose principles apply here. For to repeat, wealth or fee paying has, in our view, no relation to voting\nqualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.\n\nCHAPTER SIX: Fundamental Rights and Equal Protection | 395\n\n\x0cReversed.\nMR. JUSTICE BLACK, DISSENTING.\nIn Breedlove v. Suttles, decided December 6, 1937, a few weeks after I took my seat as a member of\nthis Court, we unanimously upheld the right of the State of Georgia to make payment of its state poll\ntax a prerequisite to voting in state elections. We rejected at that time contentions that the state law\nviolated the Equal Protection Clause of the Fourteenth Amendment because it put an unequal burden\non different groups of people according to their age, sex, and ability to pay.\nSince {then} the Federal Constitution has not been amended in the only way it could constitutionally\nhave been, that is, as provided in Article V of the Constitution. I would adhere to the holding of those\ncases. The Court, however, overrules Breedlove in part, but its opinion reveals that it does so not by\nusing its limited power to interpret the original meaning of the Equal Protection Clause, but by giving\nthat clause a new meaning which it believes represents a better governmental policy. From this action\nI dissent.\nIt should be pointed out at once that the Court\xe2\x80\x99s decision is to no extent based on a finding that the\nVirginia law as written or as applied is being used as a device or mechanism to deny Negro citizens of\nVirginia the right to vote on account of their color. Apparently the Court agrees with the District Court\nbelow and with my Brothers Harlan and Stewart that this record would not support any finding that\nthe Virginia poll tax law the Court invalidates has any such effect. If the record could support a finding\nthat the law as written or applied has such an effect, the law would of course be unconstitutional as a\nviolation of the Fourteenth and Fifteenth Amendments * * * *\nThe Court denies that it is using the \xe2\x80\x9cnatural-law-due-process formula.\xe2\x80\x9d It says that its invalidation\nof the Virginia law \xe2\x80\x9cis founded not on what we think governmental policy should be, but on what the\nEqual Protection Clause requires.\xe2\x80\x9d I find no statement in the Court\xe2\x80\x99s opinion, however, which advances\neven a plausible argument as to why the alleged discriminations which might possibly be effected by\nVirginia\xe2\x80\x99s poll tax law are \xe2\x80\x9cirrational,\xe2\x80\x9d \xe2\x80\x9cunreasonable,\xe2\x80\x9d \xe2\x80\x9carbitrary,\xe2\x80\x9d or \xe2\x80\x9cinvidious\xe2\x80\x9d or have no relevance\nto a legitimate policy which the State wishes to adopt. The Court gives no reason at all to discredit\nthe long-standing beliefs that making the payment of a tax a prerequisite to voting is an effective way\nof collecting revenue and that people who pay their taxes are likely to have a far greater interest in\ntheir government. The Court\xe2\x80\x99s failure to give any reasons to show that these purposes of the poll tax\nare \xe2\x80\x9cirrational,\xe2\x80\x9d \xe2\x80\x9cunreasonable,\xe2\x80\x9d \xe2\x80\x9carbitrary,\xe2\x80\x9d or \xe2\x80\x9cinvidious\xe2\x80\x9d is a pretty clear indication to me that none\nexist. I can only conclude that the primary, controlling, predominant, if not the exclusive reason for\ndeclaring the Virginia law unconstitutional is the Court\xe2\x80\x99s deep-seated hostility and antagonism, which\nI share, to making payment of a tax a prerequisite to voting.\nThe Court\xe2\x80\x99s justification for consulting its own notions rather than following the original meaning of\nthe Constitution, as I would, apparently is based on the belief of the majority of the Court that for this\nCourt to be bound by the original meaning of the Constitution is an intolerable and debilitating evil;\nthat our Constitution should not be \xe2\x80\x9cshackled to the political theory of a particular era,\xe2\x80\x9d and that to\n\n396 | Liberty, Equality, and Due Process: Third Edition\n\n\x0csave the country from the original Constitution the Court must have constant power to renew it and\nkeep it abreast of this Court\xe2\x80\x99s more enlightened theories of what is best for our society. * * * *\nMR. JUSTICE HARLAN, WHOM MR. JUSTICE STEWART JOINS, DISSENTING.\nThe final demise of state poll taxes, already totally proscribed by the Twenty-Fourth Amendment with\nrespect to federal elections and abolished by the States themselves in all but four States {footnote 1:\nAlabama, Mississippi, Texas, and Virginia} with respect to state elections, is perhaps in itself not of\ngreat moment. But the fact that the coup de grace has been administered by this Court instead of being\nleft to the affected States or to the federal political process should be a matter of continuing concern\nto all interested in maintaining the proper role of this tribunal under our scheme of government.\n****\n\nBush v. Gore\n531 U.S. 98 (2000)\nTHE PER CURIAM OPINION WAS JOINED BY REHNQUIST, C.J., O\xe2\x80\x99CONNOR, SCALIA, KENNEDY, AND THOMAS, J.J.\nREHNQUIST C.J., FILED A CONCURRING OPINION IN WHICH SCALIA AND THOMAS, J.J. JOINED. STEVENS, J., FILED A\nDISSENTING OPINION IN WHICH GINSBURG AND BREYER, J.J. JOINED. SOUTER, J., FILED A DISSENTING OPINION IN WHICH\nBREYER AND STEVENS, J.J. JOINED, AND GINSBURG, J., JOINED EXCEPT AS TO PART C. GINSBURG, J., FILED A DISSENTING\nOPINION JOINED BY STEVENS AND SOUTER, J.J., AND BREYER, J., AS TO PART I; BREYER FILED A DISSENTING OPINION,\nJOINED BY STEVENS, J., AND GINSBURG, J., EXCEPT AS TO PART I-A-1, AND BY SOUTER, J., AS TO PART I.\nPER CURIAM\n\nI\nOn December 8, 2000, the Supreme Court of Florida ordered that the Circuit Court of Leon County\ntabulate by hand 9,000 ballots in Miami-Dade County. It also ordered the inclusion in the certified\nvote totals of 215 votes identified in Palm Beach County and 168 votes identified in Miami-Dade\nCounty for Vice President Albert Gore, Jr., and Senator Joseph Lieberman, Democratic Candidates\nfor President and Vice President. The Supreme Court noted that petitioner, Governor George W.\nBush asserted that the net gain for Vice President Gore in Palm Beach County was 176 votes, and\ndirected the Circuit Court to resolve that dispute on remand. The court further held that relief would\nrequire manual recounts in all Florida counties where so-called \xe2\x80\x9cundervotes\xe2\x80\x9d had not been subject\nto manual tabulation. The court ordered all manual recounts to begin at once. Governor Bush and\nRichard Cheney, Republican Candidates for the Presidency and Vice Presidency, filed an emergency\napplication for a stay of this mandate. On December 9, we granted the application, treated the\napplication as a petition for a writ of certiorari, and granted certiorari.\n* * * * On November 8, 2000, the day following the Presidential election, the Florida Division of\nCHAPTER SIX: Fundamental Rights and Equal Protection | 397\n\n\x0cElections reported that petitioner, Governor Bush, had received 2,909,135 votes, and respondent,\nVice President Gore, had received 2,907,351 votes, a margin of 1,784 for Governor Bush. Because\nGovernor Bush\xe2\x80\x99s margin of victory was less than \xe2\x80\x9cone-half of a percent . . . of the votes cast,\xe2\x80\x9d an\nautomatic machine recount was conducted under \xc2\xa7 102.141(4) of the {Florida} election code, the results\nof which showed Governor Bush still winning the race but by a diminished margin. Vice President\nGore then sought manual recounts in Volusia, Palm Beach, Broward, and Miami-Dade Counties,\npursuant to Florida\xe2\x80\x99s election protest provisions. Fla. Stat. \xc2\xa7 102.166 (2000). A dispute arose concerning\nthe deadline for local county canvassing boards to submit their returns to the Secretary of State\n(Secretary). The Secretary declined to waive the November 14 deadline imposed by statute. \xc2\xa7\xc2\xa7 102.111,\n102.112. The Florida Supreme Court, however, set the deadline at November 26. We granted certiorari\nand vacated the Florida Supreme Court\xe2\x80\x99s decision, finding considerable uncertainty as to the grounds\non which it was based. Bush I. On December 11, the Florida Supreme Court issued a decision on\nremand reinstating that date.\nOn November 26, the Florida Elections Canvassing Commission certified the results of the election\nand declared Governor Bush the winner of Florida\xe2\x80\x99s 25 electoral votes. On November 27, Vice President\nGore, pursuant to Florida\xe2\x80\x99s contest provisions, filed a complaint in Leon County Circuit Court\ncontesting the certification. He sought relief pursuant to \xc2\xa7 102.168(3)(c), which provides that \xe2\x80\x9c[r]eceipt\nof a number of illegal votes or rejection of a number of legal votes sufficient to change or place in\ndoubt the result of the election \xe2\x80\x9cshall be grounds for a contest. The Circuit Court denied relief, stating\nthat Vice President Gore failed to meet his burden of proof. He appealed to the First District Court of\nAppeal, which certified the matter to the Florida Supreme Court.\nAccepting jurisdiction, the Florida Supreme Court affirmed in part and reversed in part. Gore v.\nHarris (2000). The court held that the Circuit Court had been correct to reject Vice President Gore\xe2\x80\x99s\nchallenge to the results certified in Nassau County and his challenge to the Palm Beach County\nCanvassing Board\xe2\x80\x99s determination that 3,300 ballots cast in that county were not, in the statutory\nphrase, \xe2\x80\x9clegal votes.\xe2\x80\x9d\nThe {Florida} Supreme Court held that Vice President Gore had satisfied his burden of proof under\n\xc2\xa7 102.168(3)(c) with respect to his challenge to Miami-Dade County\xe2\x80\x99s failure to tabulate, by manual\ncount, 9,000 ballots on which the machines had failed to detect a vote for President (\xe2\x80\x9cundervotes\xe2\x80\x9d).\nNoting the closeness of the election, the Court explained that \xe2\x80\x9c[o]n this record, there can be no\nquestion that there are legal votes within the 9,000 uncounted votes sufficient to place the results of\nthis election in doubt.\xe2\x80\x9d A \xe2\x80\x9clegal vote,\xe2\x80\x9d as determined by the Supreme Court, is \xe2\x80\x9cone in which there is a\n\xe2\x80\x98clear indication of the intent of the voter.\xe2\x80\x99\xe2\x80\x9d The court therefore ordered a hand recount of the 9,000\nballots in Miami-Dade County. Observing that the contest provisions vest broad discretion in the\ncircuit judge to \xe2\x80\x9cprovide any relief appropriate under such circumstances,\xe2\x80\x9d the Supreme Court further\nheld that the Circuit Court could order \xe2\x80\x9cthe Supervisor of Elections and the Canvassing Boards, as\nwell as the necessary public officials, in all counties that have not conducted a manual recount or\ntabulation of the undervotes . . . to do so forthwith, said tabulation to take place in the individual\ncounties where the ballots are located.\xe2\x80\x9d\nThe {Florida} Supreme Court also determined that both Palm Beach County and Miami-Dade County,\nin their earlier manual recounts, had identified a net gain of 215 and 168 legal votes for Vice President\n398 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cGore. Rejecting the Circuit Court\xe2\x80\x99s conclusion that Palm Beach County lacked the authority to include\nthe 215 net votes submitted past the November 26 deadline, the Supreme Court explained that\nthe deadline was not intended to exclude votes identified after that date through ongoing manual\nrecounts. As to Miami-Dade County, the Court concluded that although the 168 votes identified were\nthe result of a partial recount, they were \xe2\x80\x9clegal votes [that] could change the outcome of the election.\xe2\x80\x9d\nThe Supreme Court therefore directed the Circuit Court to include those totals in the certified\nresults, subject to resolution of the actual vote total from the Miami-Dade partial recount.\nThe petition presents the following questions: whether the Florida Supreme Court established new\nstandards for resolving Presidential election contests, thereby violating Art. II, \xc2\xa7 1, cl. 2, of the United\nStates Constitution and failing to comply with 3 U. S. C. \xc2\xa7 5, and whether the use of standardless\nmanual recounts violates the Equal Protection and Due Process Clauses. With respect to the equal\nprotection question, we find a violation of the Equal Protection Clause.\n\nII\nA\nThe closeness of this election, and the multitude of legal challenges which have followed in its\nwake, have brought into sharp focus a common, if heretofore unnoticed, phenomenon. Nationwide\nstatistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever\nreason, including deliberately choosing no candidate at all or some voter error, such as voting for\ntwo candidates or insufficiently marking a ballot. In certifying election results, the votes eligible for\ninclusion in the certification are the votes meeting the properly established legal requirements.\nThis case has shown that punch card balloting machines can produce an unfortunate number of\nballots which are not punched in a clean, complete way by the voter. After the current counting, it is\nlikely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for\nvoting.\n\nB\nThe individual citizen has no federal constitutional right to vote for electors for the President of\nthe United States unless and until the state legislature chooses a statewide election as the means\nto implement its power to appoint members of the Electoral College. U. S. Const., Art. II, \xc2\xa7 1. This\nis the source for the statement in McPherson v. Blacker (1892), that the State legislature\xe2\x80\x99s power to\nselect the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself,\nwhich indeed was the manner used by State legislatures in several States for many years after the\nFraming of our Constitution. History has now favored the voter, and in each of the several States the\ncitizens themselves vote for Presidential electors. When the state legislature vests the right to vote\nfor President in its people, the right to vote as the legislature has prescribed is fundamental; and one\nCHAPTER SIX: Fundamental Rights and Equal Protection | 399\n\n\x0csource of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity\nowed to each voter. The State, of course, after granting the franchise in the special context of Article\nII, can take back the power to appoint electors.\nThe right to vote is protected in more than the initial allocation of the franchise. Equal protection\napplies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the\nState may not, by later arbitrary and disparate treatment, value one person\xe2\x80\x99s vote over that of another.\nSee, e.g., Harper v. Virginia Bd. of Elections (1966) (\xe2\x80\x9c[O]nce the franchise is granted to the electorate,\nlines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth\nAmendment\xe2\x80\x9d). It must be remembered that \xe2\x80\x9cthe right of suffrage can be denied by a debasement or\ndilution of the weight of a citizen\xe2\x80\x99s vote just as effectively as by wholly prohibiting the free exercise of\nthe franchise.\xe2\x80\x9d Reynolds v. Sims (1964).\nThere is no difference between the two sides of the present controversy on these basic propositions.\nRespondents say that the very purpose of vindicating the right to vote justifies the recount procedures\nnow at issue. The question before us, however, is whether the recount procedures the Florida\nSupreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate\ntreatment of the members of its electorate.\nMuch of the controversy seems to revolve around ballot cards designed to be perforated by a stylus\nbut which, either through error or deliberate omission, have not been perforated with sufficient\nprecision for a machine to count them. In some cases a piece of the card\xe2\x80\x94a chad\xe2\x80\x94is hanging, say by\ntwo corners. In other cases there is no separation at all, just an indentation.\nThe Florida Supreme Court has ordered that the intent of the voter be discerned from such ballots.\nFor purposes of resolving the equal protection challenge, it is not necessary to decide whether the\nFlorida Supreme Court had the authority under the legislative scheme for resolving election disputes\nto define what a legal vote is and to mandate a manual recount implementing that definition. The\nrecount mechanisms implemented in response to the decisions of the Florida Supreme Court do\nnot satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the\nfundamental right. Florida\xe2\x80\x99s basic command for the count of legally cast votes is to consider the\n\xe2\x80\x9cintent of the voter.\xe2\x80\x9d This is unobjectionable as an abstract proposition and a starting principle. The\nproblem inheres in the absence of specific standards to ensure its equal application. The formulation\nof uniform rules to determine intent based on these recurring circumstances is practicable and, we\nconclude, necessary.\nThe law does not refrain from searching for the intent of the actor in a multitude of circumstances;\nand in some cases the general command to ascertain intent is not susceptible to much further\nrefinement. In this instance, however, the question is not whether to believe a witness but how to\ninterpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper which,\nit is said, might not have registered as a vote during the machine count. The factfinder confronts a\nthing, not a person. The search for intent can be confined by specific rules designed to ensure uniform\ntreatment.\nThe want of those rules here has led to unequal evaluation of ballots in various respects. (\xe2\x80\x9cShould a\n400 | Liberty, Equality, and Due Process: Third Edition\n\n\x0ccounty canvassing board count or not count a \xe2\x80\x98dimpled chad\xe2\x80\x99 where the voter is able to successfully\ndislodge the chad in every other contest on that ballot? Here, the county canvassing boards disagree\xe2\x80\x9d).\nAs seems to have been acknowledged at oral argument, the standards for accepting or rejecting\ncontested ballots might vary not only from county to county but indeed within a single county from\none recount team to another.\nThe record provides some examples. A monitor in Miami-Dade County testified at trial that he\nobserved that three members of the county canvassing board applied different standards in defining\na legal vote. And testimony at trial also revealed that at least one county changed its evaluative\nstandards during the counting process. Palm Beach County, for example, began the process with\na 1990 guideline which precluded counting completely attached chads, switched to a rule that\nconsidered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule,\nand then abandoned any pretense of a per se rule, only to have a court order that the county consider\ndimpled chads legal. This is not a process with sufficient guarantees of equal treatment.\nAn early case in our one person, one vote jurisprudence arose when a State accorded arbitrary and\ndisparate treatment to voters in its different counties. Gray v. Sanders (1963). The Court found a\nconstitutional violation. We relied on these principles in the context of the Presidential selection\nprocess in Moore v. Ogilvie (1969), where we invalidated a county-based procedure that diluted the\ninfluence of citizens in larger counties in the nominating process. There we observed that \xe2\x80\x9c[t]he idea\nthat one group can be granted greater voting strength than another is hostile to the one man, one\nvote basis of our representative government.\xe2\x80\x9d\nThe State Supreme Court ratified this uneven treatment. It mandated that the recount totals from two\ncounties, Miami-Dade and Palm Beach, be included in the certified total. The court also appeared to\nhold sub silentio that the recount totals from Broward County, which were not completed until after\nthe original November 14 certification by the Secretary of State, were to be considered part of the new\ncertified vote totals even though the county certification was not contested by Vice President Gore.\nYet each of the counties used varying standards to determine what was a legal vote. Broward County\nused a more forgiving standard than Palm Beach County, and uncovered almost three times as many\nnew votes, a result markedly disproportionate to the difference in population between the counties.\nIn addition, the recounts in these three counties were not limited to so-called undervotes but\nextended to all of the ballots. The distinction has real consequences. A manual recount of all ballots\nidentifies not only those ballots which show no vote but also those which contain more than one, the\nso-called overvotes. Neither category will be counted by the machine. This is not a trivial concern.\nAt oral argument, respondents estimated there are as many as 110,000 overvotes statewide. As a\nresult, the citizen whose ballot was not read by a machine because he failed to vote for a candidate\nin a way readable by a machine may still have his vote counted in a manual recount; on the other\nhand, the citizen who marks two candidates in a way discernable by the machine will not have the\nsame opportunity to have his vote count, even if a manual examination of the ballot would reveal the\nrequisite indicia of intent. Furthermore, the citizen who marks two candidates, only one of which is\ndiscernable by the machine, will have his vote counted even though it should have been read as an\ninvalid ballot. The State Supreme Court\xe2\x80\x99s inclusion of vote counts based on these variant standards\nexemplifies concerns with the remedial processes that were under way.\nCHAPTER SIX: Fundamental Rights and Equal Protection | 401\n\n\x0cThat brings the analysis to yet a further equal protection problem. The votes certified by the court\nincluded a partial total from one county, Miami-Dade. The Florida Supreme Court\xe2\x80\x99s decision thus\ngives no assurance that the recounts included in a final certification must be complete. Indeed, it\nis respondent\xe2\x80\x99s submission that it would be consistent with the rules of the recount procedures to\ninclude whatever partial counts are done by the time of final certification, and we interpret the\nFlorida Supreme Court\xe2\x80\x99s decision to permit this (noting \xe2\x80\x9cpractical difficulties\xe2\x80\x9d may control outcome of\nelection, but certifying partial Miami-Dade total nonetheless). This accommodation no doubt results\nfrom the truncated contest period established by the Florida Supreme Court in Bush I, at respondents\xe2\x80\x99\nown urging. The press of time does not diminish the constitutional concern. A desire for speed is not\na general excuse for ignoring equal protection guarantees.\nIn addition to these difficulties the actual process by which the votes were to be counted under\nthe Florida Supreme Court\xe2\x80\x99s decision raises further concerns. That order did not specify who would\nrecount the ballots. The county canvassing boards were forced to pull together ad hoc teams\ncomprised of judges from various Circuits who had no previous training in handling and interpreting\nballots. Furthermore, while others were permitted to observe, they were prohibited from objecting\nduring the recount.\nThe recount process, in its features here described, is inconsistent with the minimum procedures\nnecessary to protect the fundamental right of each voter in the special instance of a statewide recount\nunder the authority of a single state judicial officer. Our consideration is limited to the present\ncircumstances, for the problem of equal protection in election processes generally presents many\ncomplexities.\nThe question before the Court is not whether local entities, in the exercise of their expertise, may\ndevelop different systems for implementing elections. Instead, we are presented with a situation\nwhere a state court with the power to assure uniformity has ordered a statewide recount with\nminimal procedural safeguards. When a court orders a statewide remedy, there must be at least\nsome assurance that the rudimentary requirements of equal treatment and fundamental fairness are\nsatisfied.\nGiven the Court\xe2\x80\x99s assessment that the recount process underway was probably being conducted in an\nunconstitutional manner, the Court stayed the order directing the recount so it could hear this case\nand render an expedited decision. The contest provision, as it was mandated by the State Supreme\nCourt, is not well calculated to sustain the confidence that all citizens must have in the outcome of\nelections. The State has not shown that its procedures include the necessary safeguards. The problem,\nfor instance, of the estimated 110,000 overvotes has not been addressed, although {Florida Supreme\nCourt} Chief Justice Wells called attention to the concern in his dissenting opinion.\nUpon due consideration of the difficulties identified to this point, it is obvious that the recount cannot\nbe conducted in compliance with the requirements of equal protection and due process without\nsubstantial additional work. It would require not only the adoption (after opportunity for argument)\nof adequate statewide standards for determining what is a legal vote, and practicable procedures to\nimplement them, but also orderly judicial review of any disputed matters that might arise. In addition,\nthe Secretary of State has advised that the recount of only a portion of the ballots requires that the\n402 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cvote tabulation equipment be used to screen out undervotes, a function for which the machines were\nnot designed. If a recount of overvotes were also required, perhaps even a second screening would be\nnecessary. Use of the equipment for this purpose, and any new software developed for it, would have\nto be evaluated for accuracy by the Secretary of State, as required by Fla. Stat. \xc2\xa7 101.015 (2000).\nThe Supreme Court of Florida has said that the legislature intended the State\xe2\x80\x99s electors to\n\xe2\x80\x9cparticipat[e] fully in the federal electoral process,\xe2\x80\x9d as provided in 3 U. S. C. \xc2\xa7 5. That statute, in turn,\nrequires that any controversy or contest that is designed to lead to a conclusive selection of electors\nbe completed by December 12. That date is upon us, and there is no recount procedure in place under\nthe State Supreme Court\xe2\x80\x99s order that comports with minimal constitutional standards. Because it\nis evident that any recount seeking to meet the December 12 date will be unconstitutional for the\nreasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a\nrecount to proceed.\nSeven Justices of the Court agree that there are constitutional problems with the recount ordered\nby the Florida Supreme Court that demand a remedy. {In addition to 5 Justices in per curiam, add}\n(Souter, J., dissenting); (Breyer, J., dissenting). The only disagreement is as to the remedy. Because\nthe Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor\nbenefits of 3 U. S. C. \xc2\xa7 5, Justice Breyer\xe2\x80\x99s proposed remedy\xe2\x80\x94remanding to the Florida Supreme\nCourt for its ordering of a constitutionally proper contest until December 18-contemplates action\nin violation of the Florida election code, and hence could not be part of an \xe2\x80\x9cappropriate\xe2\x80\x9d order\nauthorized by Fla. Stat. \xc2\xa7 102.168(8) (2000).\n***\nNone are more conscious of the vital limits on judicial authority than are the members of this Court,\nand none stand more in admiration of the Constitution\xe2\x80\x99s design to leave the selection of the President\nto the people, through their legislatures, and to the political sphere. When contending parties invoke\nthe process of the courts, however, it becomes our unsought responsibility to resolve the federal and\nconstitutional issues the judicial system has been forced to confront.\nThe judgment of the Supreme Court of Florida is reversed, and the case is remanded for further\nproceedings not inconsistent with this opinion.\nPursuant to this Court\xe2\x80\x99s Rule 45.2, the Clerk is directed to issue the mandate in this case forthwith.\nIt is so ordered.\nJUSTICE STEVENS, WITH WHOM JUSTICE GINSBURG AND JUSTICE BREYER JOIN, DISSENTING.\nThe Constitution assigns to the States the primary responsibility for determining the manner of\nselecting the Presidential electors. See Art. II, \xc2\xa7 1, cl. 2. When questions arise about the meaning of\nstate laws, including election laws, it is our settled practice to accept the opinions of the highest\ncourts of the States as providing the final answers. On rare occasions, however, either federal statutes\nor the Federal Constitution may require federal judicial intervention in state elections. This is not such\nan occasion. * * * *\nCHAPTER SIX: Fundamental Rights and Equal Protection | 403\n\n\x0cNor are petitioners correct in asserting that the failure of the Florida Supreme Court to specify in\ndetail the precise manner in which the \xe2\x80\x9cintent of the voter,\xe2\x80\x9d is to be determined rises to the level of a\nconstitutional violation. We found such a violation when individual votes within the same State were\nweighted unequally, see, e.g., Reynolds v. Sims (1964), but we have never before called into question\nthe substantive standard by which a State determines that a vote has been legally cast. And there is\nno reason to think that the guidance provided to the factfinders, specifically the various canvassing\nboards, by the \xe2\x80\x9cintent of the voter\xe2\x80\x9d standard is any less sufficient\xe2\x80\x94or will lead to results any less\nuniform\xe2\x80\x94than, for example, the \xe2\x80\x9cbeyond a reasonable doubt\xe2\x80\x9d standard employed everyday by ordinary\ncitizens in courtrooms across this country.\nAdmittedly, the use of differing substandards for determining voter intent in different counties\nemploying similar voting systems may raise serious concerns. Those concerns are alleviated\xe2\x80\x94if not\neliminated\xe2\x80\x94by the fact that a single impartial magistrate will ultimately adjudicate all objections\narising from the recount process. Of course, as a general matter, \xe2\x80\x9c[t]he interpretation of constitutional\nprinciples must not be too literal. We must remember that the machinery of government would not\nwork if it were not allowed a little play in its joints.\xe2\x80\x9d Bain Peanut Co. of Tex. v. Pinson (1931) (Holmes,\nJ.). If it were otherwise, Florida\xe2\x80\x99s decision to leave to each county the determination of what balloting\nsystem to employ\xe2\x80\x94despite enormous differences in accuracy\xe2\x80\x94might run afoul of equal protection. So,\ntoo, might the similar decisions of the vast majority of state legislatures to delegate to local authorities\ncertain decisions with respect to voting systems and ballot design.\nEven assuming that aspects of the remedial scheme might ultimately be found to violate the Equal\nProtection Clause, I could not subscribe to the majority\xe2\x80\x99s disposition of the case. As the majority\nexplicitly holds, once a state legislature determines to select electors through a popular vote, the\nright to have one\xe2\x80\x99s vote counted is of constitutional stature. As the majority further acknowledges,\nFlorida law holds that all ballots that reveal the intent of the voter constitute valid votes. Recognizing\nthese principles, the majority nonetheless orders the termination of the contest proceeding before all\nsuch votes have been tabulated. Under their own reasoning, the appropriate course of action would\nbe to remand to allow more specific procedures for implementing the legislature\xe2\x80\x99s uniform general\nstandard to be established.\nIn the interest of finality, however, the majority effectively orders the disenfranchisement of an\nunknown number of voters whose ballots reveal their intent\xe2\x80\x94and are therefore legal votes under state\nlaw\xe2\x80\x94but were for some reason rejected by ballot-counting machines. It does so on the basis of the\ndeadlines set forth in Title 3 of the United States Code. But, as I have already noted, those provisions\nmerely provide rules of decision for Congress to follow when selecting among conflicting slates of\nelectors. They do not prohibit a State from counting what the majority concedes to be legal votes\nuntil a bona fide winner is determined. Indeed, in 1960, Hawaii appointed two slates of electors and\nCongress chose to count the one appointed on January 4, 1961, well after the Title 3 deadlines. Thus,\nnothing prevents the majority, even if it properly found an equal protection violation, from ordering\nrelief appropriate to remedy that violation without depriving Florida voters of their right to have their\nvotes counted. As the majority notes, \xe2\x80\x9c[a] desire for speed is not a general excuse for ignoring equal\nprotection guarantees.\xe2\x80\x9d\nFinally, neither in this case, nor in its earlier opinion in Palm Beach County Canvassing Bd. v. Harris,\n404 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cdid the Florida Supreme Court make any substantive change in Florida electoral law. Its decisions\nwere rooted in long-established precedent and were consistent with the relevant statutory provisions,\ntaken as a whole. It did what courts do\xe2\x80\x94it decided the case before it in light of the legislature\xe2\x80\x99s intent\nto leave no legally cast vote uncounted. In so doing, it relied on the sufficiency of the general \xe2\x80\x9cintent of\nthe voter\xe2\x80\x9d standard articulated by the state legislature, coupled with a procedure for ultimate review\nby an impartial judge, to resolve the concern about disparate evaluations of contested ballots. If we\nassume\xe2\x80\x94as I do\xe2\x80\x94that the members of that court and the judges who would have carried out its\nmandate are impartial, its decision does not even raise a colorable federal question.\nWhat must underlie petitioners\xe2\x80\x99 entire federal assault on the Florida election procedures is an\nunstated lack of confidence in the impartiality and capacity of the state judges who would make the\ncritical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit.\nThe endorsement of that position by the majority of this Court can only lend credence to the most\ncynical appraisal of the work of judges throughout the land. It is confidence in the men and women\nwho administer the judicial system that is the true backbone of the rule of law. Time will one day\nheal the wound to that confidence that will be inflicted by today\xe2\x80\x99s decision. One thing, however, is\ncertain. Although we may never know with complete certainty the identity of the winner of this year\xe2\x80\x99s\nPresidential election, the identity of the loser is perfectly clear. It is the Nation\xe2\x80\x99s confidence in the\njudge as an impartial guardian of the rule of law.\nI respectfully dissent.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=39#h5p-91\n\nRichardson v. Ramirez\n418 U.S. 24 (1974)\n\nCHAPTER SIX: Fundamental Rights and Equal Protection | 405\n\n\x0cREHNQUIST, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C. J., AND STEWART, WHITE, BLACKMUN,\nAND POWELL, JJ., JOINED. DOUGLAS, J., FILED A DISSENTING STATEMENT. MARSHALL, J., FILED A DISSENTING OPINION, IN\nWHICH BRENNAN, J., JOINED AND IN PART I-A OF WHICH DOUGLAS, J., JOINED.\nMR. JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT.\nThe three individual respondents in this case were convicted of felonies and have completed the\nservice of their respective sentences and paroles. They filed a petition for a writ of mandate in the\nSupreme Court of California to compel California county election officials to register them as voters.\nThey claimed, on behalf of themselves and others similarly situated, that application to them of the\nprovisions of the California Constitution and implementing statutes which disenfranchised persons\nconvicted of an \xe2\x80\x9cinfamous crime\xe2\x80\x9d denied them the right to equal protection of the laws under the\nFederal Constitution. The Supreme Court of California held that \xe2\x80\x9cas applied to all ex-felons whose\nterms of incarceration and parole have expired, the provisions of article II and article XX, section 11,\nof the California Constitution denying the right of suffrage to persons convicted of crime, together\nwith the several sections of the Elections Code implementing that disqualification . . . violate the equal\nprotection clause of the Fourteenth Amendment.\xe2\x80\x9d We granted certiorari.\n\nI\nBefore reaching respondents\xe2\x80\x99 constitutional challenge, the Supreme Court of California considered\nwhether a decision reached by the three county clerks not to contest the action, together with\ntheir representation to the court that they would henceforth permit all ex-felons whose terms of\nincarceration and parole had expired to register and vote, rendered this case moot. That court\ndecided that it did not. * * * *\nAs a practical matter, there can be no doubt that there is a spirited dispute between the parties in this\nCourt as to the constitutionality of the California provisions disenfranchising ex-felons. * * * * The\nbriefs of the parties before us indicate that the adverse alignment in the Supreme Court of California\ncontinues in this Court, and we therefore hold the case is not moot.\n\nII\nUnlike most claims under the Equal Protection Clause, for the decision of which we have only\nthe language of the Clause itself as it is embodied in the Fourteenth Amendment, respondents\xe2\x80\x99\nclaim implicates not merely the language of the Equal Protection Clause of \xc2\xa7 1 of the Fourteenth\nAmendment, but also the provisions of the less familiar \xc2\xa7 2 of the Amendment:\nRepresentatives shall be apportioned among the several States according to their respective\nnumbers, counting the whole number of persons in each State, excluding Indians not taxed.\nBut when the right to vote at any election for the choice of electors for President and Vice\nPresident of the United States, Representatives in Congress, the Executive and Judicial officers\nof a State, or the members of the Legislature thereof, is denied to any of the male inhabitants\n406 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cof such State, being twenty-one years of age, and citizens of the United States, or in any\nway abridged, except for participation in rebellion, or other crime, the basis of representation\ntherein shall be reduced in the proportion which the number of such male citizens shall bear\nto the whole number of male citizens twenty-one years of age in such State.\n(Emphasis supplied.)\nPetitioner contends that the italicized language of \xc2\xa7 2 expressly exempts from the sanction of that\nsection disenfranchisement grounded on prior conviction of a felony. She goes on to argue that those\nwho framed and adopted the Fourteenth Amendment could not have intended to prohibit outright\nin \xc2\xa7 1 of that Amendment that which was expressly exempted from the lesser sanction of reduced\nrepresentation imposed by \xc2\xa7 2 of the Amendment. This argument seems to us a persuasive one unless\nit can be shown that the language of \xc2\xa7 2, \xe2\x80\x9cexcept for participation in rebellion, or other crime,\xe2\x80\x9d was\nintended to have a different meaning than would appear from its face.\nThe problem of interpreting the \xe2\x80\x9cintention\xe2\x80\x9d of a constitutional provision is, as countless cases of this\nCourt recognize, a difficult one. Not only are there deliberations of congressional committees and\nfloor debates in the House and Senate, but an amendment must thereafter be ratified by the necessary\nnumber of States. The legislative history bearing on the meaning of the relevant language of \xc2\xa7 2 is\nscant indeed; the framers of the Amendment were primarily concerned with the effect of reduced\nrepresentation upon the States, rather than with the two forms of disenfranchisement which were\nexempted from that consequence by the language with which we are concerned here. Nonetheless,\nwhat legislative history there is indicates that this language was intended by Congress to mean what\nit says.\n****\nThroughout the floor debates in both the House and the Senate, in which numerous changes of\nlanguage in \xc2\xa7 2 were proposed, the language \xe2\x80\x9cexcept for participation in rebellion, or other crime\xe2\x80\x9d\nwas never altered. The language of \xc2\xa7 2 attracted a good deal of interest during the debates, but most\nof the discussion was devoted to its foreseeable consequences in both the Northern and Southern\nStates, and to arguments as to its necessity or wisdom. What little comment there was on the phrase\nin question here supports a plain reading of it.\n****\nThe debates in the Senate did not cover the subject as exhaustively as did the debates in the House,\napparently because many of the critical decisions were made by the Republican Senators in an\nunreported series of caucuses off the floor. * * * *\nNonetheless, the occasional comments of Senators on the language in question indicate an\nunderstanding similar to that of the House members.\n****\nFurther light is shed on the understanding of those who framed and ratified the Fourteenth\nAmendment, and thus on the meaning of \xc2\xa7 2, by the fact that at the time of the adoption of the\nCHAPTER SIX: Fundamental Rights and Equal Protection | 407\n\n\x0cAmendment, 29 States had provisions in their constitutions which prohibited, or authorized the\nlegislature to prohibit, exercise of the franchise by persons convicted of felonies or infamous crimes.\nMore impressive than the mere existence of the state constitutional provisions disenfranchising\nfelons at the time of the adoption of the Fourteenth Amendment is the congressional treatment of\nStates readmitted to the Union following the Civil War. For every State thus readmitted, affirmative\ncongressional action in the form of an enabling act was taken, and as a part of the readmission process\nthe State seeking readmission was required to submit for the approval of the Congress its proposed\nstate constitution. In March 1867, before any State was readmitted, Congress passed \xe2\x80\x9cAn act to provide\nfor the more efficient Government of the Rebel States,\xe2\x80\x9d the so-called Reconstruction Act. Act of Mar.\n2, 1867, c. 153, 14 Stat. 428. Section 5 of the Reconstruction Act established conditions on which the\nformer Confederate States would be readmitted to representation in Congress. It provided:\nThat when the people of any one of said rebel States shall have formed a constitution of\ngovernment in conformity with the Constitution of the United States in all respects, framed\nby a convention of delegates elected by the male citizens of said State, twenty-one years old\nand upward, of whatever race, color, or previous condition, who have been resident in said\nState for one year previous to the day of such election, except such as may be disfranchised\nfor participation in the rebellion or for felony at common law, and when such constitution\nshall provide that the elective franchise shall be enjoyed by all such persons as have the\nqualifications herein stated for electors of delegates, and when such constitution shall be\nratified by a majority of the persons voting on the question of ratification who are qualified as\nelectors for delegates, and when such constitution shall have been submitted to Congress for\nexamination and approval, and Congress shall have approved the same, and when said State,\nby a vote of its legislature elected under said constitution, shall have adopted the amendment\nto the Constitution of the United States, proposed by the Thirty-ninth Congress, and known\nas article fourteen, and when said article shall have become a part of the Constitution of the\nUnited States, said State shall be declared entitled to representation in Congress, and senators\nand representatives shall be admitted therefrom on their taking the oath prescribed by law,\nand then and thereafter the preceding sections of this act shall be inoperative in said State . . . .\n(Emphasis supplied.)\n****\nA series of enabling acts in 1868 and 1870 admitted those States to representation in Congress. The\nAct admitting Arkansas, the first State to be so admitted, attached a condition to its admission. Act of\nJune 22, 1868, c. 69, 15 Stat. 72. That Act provided:\n\xe2\x80\x9cWHEREAS the people of Arkansas, in pursuance of the provisions of an act entitled \xe2\x80\x98An act for\nthe more efficient government of the rebel States,\xe2\x80\x99 passed March second, eighteen hundred\nand sixty-seven, and the act supplementary thereto, have framed and adopted a constitution\nof State government, which is republican, and the legislature of said State has duly ratified the\namendment to the Constitution of the United States proposed by the Thirty-ninth Congress,\nand known as article fourteen: Therefore,\n408 | Liberty, Equality, and Due Process: Third Edition\n\n\x0c\xe2\x80\x9cBe it enacted . . . That the State of Arkansas is entitled and admitted to representation in\nCongress as one of the States of the Union upon the following fundamental condition: That\nthe constitution of Arkansas shall never be so amended or changed as to deprive any citizen\nor class of citizens of the United States of the right to vote who are entitled to vote by the\nconstitution herein recognized, except as a punishment for such crimes as are now felonies at\ncommon law, whereof they shall have been duly convicted, under laws equally applicable to all\nthe inhabitants of said State: Provided, That any alteration of said constitution prospective in\nits effect may be made in regard to the time and place of residence of voters.\xe2\x80\x9d\nThe phrase \xe2\x80\x9cunder laws equally applicable to all the inhabitants of said State\xe2\x80\x9d was introduced as an\namendment to the House bill by Senator Drake of Missouri. Cong. Globe, 40th Cong., 2d Sess., 2600\n(1868). Senator Drake\xe2\x80\x99s explanation of his reason for introducing his amendment is illuminating. He\nexpressed concern that without that restriction, Arkansas might misuse the exception for felons to\ndisenfranchise Negroes:\n\xe2\x80\x9cThere is still another objection to the condition as expressed in the bill, and that is in the\nexception as to the punishment for crime. The bill authorizes men to be deprived of the right\nto vote \xe2\x80\x98as a punishment for such crimes as are now felonies at common law, whereof they\nshall have been duly convicted.\xe2\x80\x99 There is one fundamental defect in that, and that is that there\nis no requirement that the laws under which men shall be duly convicted of these crimes shall\nbe equally applicable to all the inhabitants of the State. It is a very easy thing in a State to make\none set of laws applicable to white men, and another set of laws applicable to colored men.\xe2\x80\x9d\nThe same \xe2\x80\x9cfundamental condition\xe2\x80\x9d as was imposed by the act readmitting Arkansas was also, with\nonly slight variations in language, imposed by the Act readmitting North Carolina, South Carolina,\nLouisiana, Georgia, Alabama, and Florida, enacted three days later. Act of June 25, 1868, c. 70, 15 Stat.\n73. That condition was again imposed by the Acts readmitting Virginia, Mississippi, Texas, and Georgia\nearly in 1870. Act of Jan. 26, 1870, c. 10, 16 Stat. 62; Act of Feb. 1, 1870, c. 12, 16 Stat. 63; Act of Feb. 23,\n1870, c. 19, 16 Stat. 67; Act of Mar. 30, 1870, c. 39, 16 Stat. 80; Act of July 15, 1870, c. 299, 16 Stat. 363.\nThis convincing evidence of the historical understanding of the Fourteenth Amendment is confirmed\nby the decisions of this Court which have discussed the constitutionality of provisions\ndisenfranchising felons. Although the Court has never given plenary consideration to the precise\nquestion of whether a State may constitutionally exclude some or all convicted felons from the\nfranchise, we have indicated approval of such exclusions on a number of occasions. In two cases\ndecided toward the end of the last century, the Court approved exclusions of bigamists and\npolygamists from the franchise under territorial laws of Utah and Idaho. Murphy v. Ramsey (1885);\nDavis v. Beason (1890). Much more recently we have strongly suggested in dicta that exclusion of\nconvicted felons from the franchise violates no constitutional provision. In Lassiter v. Northampton\nCounty Board of Elections (1959), where we upheld North Carolina\xe2\x80\x99s imposition of a literacy\nrequirement for voting, the Court said:\nResidence requirements, age, previous criminal record (Davis v. Beason) are obvious examples\nindicating factors which a State may take into consideration in determining the qualifications\nof voters.\nCHAPTER SIX: Fundamental Rights and Equal Protection | 409\n\n\x0cStill more recently, we have summarily affirmed two decisions of three-judge District Courts rejecting\nconstitutional challenges to state laws disenfranchising convicted felons. Both District Courts relied\non Green v. Board of Elections, cert. denied (1968), where the Court of Appeals for the Second Circuit\nheld that a challenge to New York\xe2\x80\x99s exclusion of convicted felons from the vote did not require the\nconvening of a three-judge district court.\nDespite this settled historical and judicial understanding of the Fourteenth Amendment\xe2\x80\x99s effect on\nstate laws disenfranchising convicted felons, respondents argue that our recent decisions invalidating\nother state-imposed restrictions on the franchise as violative of the Equal Protection Clause require\nus to invalidate the disenfranchisement of felons as well. They rely on such cases to support the\nconclusions of the Supreme Court of California that a State must show a \xe2\x80\x9ccompelling state interest\xe2\x80\x9d to\njustify exclusion of ex-felons from the franchise and that California has not done so here.\nAs we have seen, however, the exclusion of felons from the vote has an affirmative sanction in \xc2\xa7 2 of\nthe Fourteenth Amendment, a sanction which was not present in the case of the other restrictions\non the franchise which were invalidated in the cases on which respondents rely. We hold that the\nunderstanding of those who adopted the Fourteenth Amendment, as reflected in the express language\nof \xc2\xa7 2 and in the historical and judicial interpretation of the Amendment\xe2\x80\x99s applicability to state laws\ndisenfranchising felons, is of controlling significance in distinguishing such laws from those other\nstate limitations on the franchise which have been held invalid under the Equal Protection Clause\nby this Court. We do not think that the Court\xe2\x80\x99s refusal to accept Mr. Justice Harlan\xe2\x80\x99s position in\nhis dissents in Reynolds v. Sims (1964), and Carrington v. Rash (1965), that \xc2\xa7 2 is the only part of the\nAmendment dealing with voting rights, dictates an opposite result. We need not go nearly so far\nas Mr. Justice Harlan would to reach our conclusion, for we may rest on the demonstrably sound\nproposition that \xc2\xa7 1 in dealing with voting rights as it does, could not have been meant to bar\noutright a form of disenfranchisement which was expressly exempted from the less drastic sanction\nof reduced representation which \xc2\xa7 2 imposed for other forms of disenfranchisement. Nor can we\naccept respondents\xe2\x80\x99 argument that because \xc2\xa7 2 was made part of the Amendment \xe2\x80\x9c\xe2\x80\x98largely through\nthe accident of political exigency rather than through the relation which it bore to the other sections\nof the Amendment,\xe2\x80\x99\xe2\x80\x9d we must not look to it for guidance in interpreting \xc2\xa7 1. It is as much a part of\nthe Amendment as any of the other sections, and how it became a part of the Amendment is less\nimportant than what it says and what it means.\nPressed upon us by the respondents, and by amici curiae, are contentions that these notions are\noutmoded, and that the more modern view is that it is essential to the process of rehabilitating\nthe ex-felon that he be returned to his role in society as a fully participating citizen when he has\ncompleted the serving of his term. We would by no means discount these arguments if addressed to\nthe legislative forum which may properly weigh and balance them against those advanced in support\nof California\xe2\x80\x99s present constitutional provisions. But it is not for us to choose one set of values over the\nother. If respondents are correct, and the view which they advocate is indeed the more enlightened\nand sensible one, presumably the people of the State of California will ultimately come around to that\nview. And if they do not do so, their failure is some evidence, at least, of the fact that there are two\nsides to the argument.\nWe therefore hold that the Supreme Court of California erred in concluding that California may no\n410 | Liberty, Equality, and Due Process: Third Edition\n\n\x0clonger, consistent with the Equal Protection Clause of the Fourteenth Amendment, exclude from the\nfranchise convicted felons who have completed their sentences and paroles. The California court\ndid not reach respondents\xe2\x80\x99 alternative contention that there was such a total lack of uniformity in\ncounty election officials\xe2\x80\x99 enforcement of the challenged state laws as to work a separate denial of\nequal protection, and we believe that it should have an opportunity to consider the claim before we\naddress ourselves to it. Accordingly, we reverse and remand for further proceedings not inconsistent\nwith this opinion.\nIt is so ordered.\nMR. JUSTICE MARSHALL, WITH WHOM MR. JUSTICE BRENNAN JOINS, DISSENTING.\nThe Court today holds that a State may strip ex-felons who have fully paid their debt to society of\ntheir fundamental right to vote without running afoul of the Fourteenth Amendment. This result is,\nin my view, based on an unsound historical analysis which already has been rejected by this Court. In\nstraining to reach that result, I believe that the Court has also disregarded important limitations on its\njurisdiction. For these reasons, I respectfully dissent.\n\nI\n{procedural discussion omitted}\n\nII\nSince the Court nevertheless reaches the merits of the constitutionality of California\xe2\x80\x99s\ndisenfranchisement of ex-felons, I find it necessary to register my dissent on the merits as well.\nThe Court construes \xc2\xa7 2 of the Fourteenth Amendment as an express authorization for the States to\ndisenfranchise former felons. Section 2 does except disenfranchisement for \xe2\x80\x9cparticipation in rebellion,\nor other crime\xe2\x80\x9d from the operation of its penalty provision. As the Court notes, however, there is\nlittle independent legislative history as to the crucial words \xe2\x80\x9cor other crime\xe2\x80\x9d; the proposed \xc2\xa7 2 went\nto a joint committee containing only the phrase \xe2\x80\x9cparticipation in rebellion\xe2\x80\x9d and emerged with \xe2\x80\x9cor\nother crime\xe2\x80\x9d inexplicably tacked on. In its exhaustive review of the lengthy legislative history of the\nFourteenth Amendment, the Court has come upon only one explanatory reference for the \xe2\x80\x9cother\ncrimes\xe2\x80\x9d provision \xe2\x80\x93 a reference which is unilluminating at best.\nThe historical purpose for \xc2\xa7 2 itself is, however, relatively clear and in my view, dispositive of this case.\nThe Republicans who controlled the 39th Congress were concerned that the additional congressional\nrepresentation of the Southern States which would result from the abolition of slavery might weaken\ntheir own political dominance. There were two alternatives available \xe2\x80\x93 either to limit southern\nrepresentation, which was unacceptable on a long-term basis, or to insure that southern Negroes,\nsympathetic to the Republican cause, would be enfranchised; but an explicit grant of suffrage to\nNegroes was thought politically unpalatable at the time. Section 2 of the Fourteenth Amendment\nCHAPTER SIX: Fundamental Rights and Equal Protection | 411\n\n\x0cwas the resultant compromise. It put Southern States to a choice \xe2\x80\x93 enfranchise Negro voters or lose\ncongressional representation.\nThe political motivation behind \xc2\xa7 2 was a limited one. It had little to do with the purposes of the rest\nof the Fourteenth Amendment. As one noted commentator explained:\n\xe2\x80\x9cIt became a part of the Fourteenth Amendment largely through the accident of political\nexigency rather than through the relation which it bore to the other sections of the\nAmendment.\xe2\x80\x9d [I]t seems quite impossible to conclude that there was a clear and deliberate\nunderstanding in the House that \xc2\xa7 2 was the sole source of national authority to protect voting\nrights, or that it expressly recognized the states\xe2\x80\x99 power to deny or abridge the right to vote.\xe2\x80\x9d\nIt is clear that \xc2\xa7 2 was not intended and should not be construed to be a limitation on the other\nsections of the Fourteenth Amendment. Section 2 provides a special remedy \xe2\x80\x93 reduced\nrepresentation \xe2\x80\x93 to cure a particular form of electoral abuse \xe2\x80\x93 the disenfranchisement of Negroes.\nThere is no indication that the framers of the provisions intended that special penalty to be the\nexclusive remedy for all forms of electoral discrimination. This Court has repeatedly rejected that\nrationale. See Reynolds v. Sims (1964); Carrington v. Rash (1965).\nRather, a discrimination to which the penalty provision of \xc2\xa7 2 is inapplicable must still be judged\nagainst the Equal Protection Clause of \xc2\xa7 1 to determine whether judicial or congressional remedies\nshould be invoked. That conclusion is compelled by this Court\xe2\x80\x99s holding in Oregon v. Mitchell (1970).\nAlthough \xc2\xa7 2 excepts from its terms denial of the franchise not only to ex-felons but also to persons\nunder 21 years of age, we held that the Congress, under \xc2\xa7 5, had the power to implement the Equal\nProtection Clause by lowering the voting age to 18 in federal elections. * * * *\nThe Court\xe2\x80\x99s references to congressional enactments contemporaneous to the adoption of the\nFourteenth Amendment, such as the Reconstruction Act and the readmission statutes, are inapposite.\nThey do not explain the purpose for the adoption of \xc2\xa7 2 of the Fourteenth Amendment. They merely\nindicate that disenfranchisement for participation in crime was not uncommon in the States at the\ntime of the adoption of the Amendment. Hence, not surprisingly, that form of disenfranchisement\nwas excepted from the application of the special penalty provision of \xc2\xa7 2. But because Congress\nchose to exempt one form of electoral discrimination from the reduction-of-representation remedy\nprovided by \xc2\xa7 2 does not necessarily imply congressional approval of this disenfranchisement. By\nproviding a special remedy for disenfranchisement of a particular class of voters in \xc2\xa7 2, Congress\ndid not approve all election discriminations to which the \xc2\xa7 2 remedy was inapplicable, and such\ndiscriminations thus are not forever immunized from evolving standards of equal protection scrutiny.\nCf. Shapiro v. Thompson (1969). There is no basis for concluding that Congress intended by \xc2\xa7 2 to\nfreeze the meaning of other clauses of the Fourteenth Amendment to the conception of voting rights\nprevalent at the time of the adoption of the Amendment. In fact, one form of disenfranchisement \xe2\x80\x93\none-year durational residence requirements \xe2\x80\x93 specifically authorized by the Reconstruction Act, one\nof the contemporaneous enactments upon which the Court relies to show the intendment of the\nframers of the Fourteenth Amendment, has already been declared unconstitutional by this Court in\nDunn v. Blumstein (1972).\n\n412 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cDisenfranchisement for participation in crime, like durational residence requirements, was common\nat the time of the adoption of the Fourteenth Amendment. But \xe2\x80\x9cconstitutional concepts of equal\nprotection are not immutably frozen like insects trapped in Devonian amber.\xe2\x80\x9d We have repeatedly\nobserved:\n[T]he Equal Protection Clause is not shackled to the political theory of a particular era. In\ndetermining what lines are unconstitutionally discriminatory, we have never been confined to\nhistoric notions of equality, any more than we have restricted due process to a fixed catalogue\nof what was at a given time deemed to be the limits of fundamental rights.\nHarper v. Virginia Board of Elections (1966).\nAccordingly, neither the fact that several States had ex-felon disenfranchisement laws at the time\nof the adoption of the Fourteenth Amendment, nor that such disenfranchisement was specifically\nexcepted from the special remedy of \xc2\xa7 2, can serve to insulate such disenfranchisement from equal\nprotection scrutiny.\n\nIII\nIn my view, the disenfranchisement of ex-felons must be measured against the requirements of the\nEqual Protection Clause of \xc2\xa7 1 of the Fourteenth Amendment. That analysis properly begins with\nthe observation that because the right to vote \xe2\x80\x9cis of the essence of a democratic society, and any\nrestrictions on that right strike at the heart of representative government,\xe2\x80\x9d Reynolds v. Sims, voting is\na \xe2\x80\x9cfundamental\xe2\x80\x9d right. * * * * \xe2\x80\x9c[I]f a challenged statute grants the right to vote to some citizens and\ndenies the franchise to others, \xe2\x80\x98the Court must determine whether the exclusions are necessary to\npromote a compelling state interest.\xe2\x80\x99\xe2\x80\x9d * * * *\nI think it clear that the State has not met its burden of justifying the blanket disenfranchisement of\nformer felons presented by this case. There is certainly no basis for asserting that ex-felons have any\nless interest in the democratic process than any other citizen. Like everyone else, their daily lives are\ndeeply affected and changed by the decisions of government. As the Secretary of State of California\nobserved in his memorandum to the Court in support of respondents in this case:\n\xe2\x80\x9cIt is doubtful . . . whether the state can demonstrate either a compelling or rational policy\ninterest in denying former felons the right to vote. The individuals involved in the present\ncase are persons who have fully paid their debt to society. They are as much affected by the\nactions of government as any other citizens, and have as much of a right to participate in\ngovernmental decision-making. Furthermore, the denial of the right to vote to such persons is\na hindrance to the efforts of society to rehabilitate former felons and convert them into lawabiding and productive citizens.\xe2\x80\x9d\nIt is argued that disenfranchisement is necessary to prevent vote frauds. Although the State has a\nlegitimate and, in fact, compelling interest in preventing election fraud, the challenged provision is not\nsustainable on that ground. First, the disenfranchisement provisions are patently both overinclusive\nCHAPTER SIX: Fundamental Rights and Equal Protection | 413\n\n\x0cand underinclusive. The provision is not limited to those who have demonstrated a marked propensity\nfor abusing the ballot by violating election laws. Rather, it encompasses all former felons and there has\nbeen no showing that ex-felons generally are any more likely to abuse the ballot than the remainder\nof the population. In contrast, many of those convicted of violating election laws are treated as\nmisdemeanants and are not barred from voting at all. It seems clear that the classification here is not\ntailored to achieve its articulated goal, since it crudely excludes large numbers of otherwise qualified\nvoters.\nMoreover, there are means available for the State to prevent voting fraud which are far less\nburdensome on the constitutionally protected right to vote. * * * * [T]he State \xe2\x80\x9chas at its disposal\na variety of criminal laws that are more than adequate to detect and deter whatever fraud may\nbe feared.\xe2\x80\x9d The California court\xe2\x80\x99s catalogue of that State\xe2\x80\x99s penal sanctions for election fraud surely\ndemonstrates that there are adequate alternatives to disenfranchisement. * * * *\nGiven the panoply of criminal offenses available to deter and to punish electoral misconduct, as well\nas the statutory reforms and technological changes which have transformed the electoral process in\nthe last century, election fraud may no longer be a serious danger.\nAnother asserted purpose is to keep former felons from voting because their likely voting pattern\nmight be subversive of the interests of an orderly society. Support for the argument that electors can\nbe kept from the ballot box for fear they might vote to repeal or emasculate provisions of the criminal\ncode, is drawn primarily from this Court\xe2\x80\x99s decisions in Murphy v. Ramsey (1885), and Davis v. Beason\n(1890). In Murphy, the Court upheld the disenfranchisement of anyone who had ever entered into a\nbigamous or polygamous marriage and in Davis, the Court sanctioned, as a condition to the exercise\nof franchise, the requirement of an oath that the elector did not \xe2\x80\x9cteach, advise, counsel or encourage\nany person to commit the crime of bigamy or polygamy.\xe2\x80\x9d The Court\xe2\x80\x99s intent was clear \xe2\x80\x93 \xe2\x80\x9cto withdraw\nall political influence from those who are practically hostile to\xe2\x80\x9d the goals of certain criminal laws.\nTo the extent Murphy and Davis approve the doctrine that citizens can be barred from the ballot box\nbecause they would vote to change the existing criminal law, those decisions are surely of minimal\ncontinuing precedential value. We have since explicitly held that such \xe2\x80\x9cdifferences of opinion cannot\njustify excluding [any] group from . . . \xe2\x80\x98the franchise\xe2\x80\x99:\n\xe2\x80\x9c[I]f they are . . . residents, . . . they, as all other qualified residents, have a right to an equal opportunity\nfor political representation. . . . \xe2\x80\x98Fencing out\xe2\x80\x99 from the franchise a sector of the population because of\nthe way they may vote is constitutionally impermissible.\xe2\x80\x9d\nAlthough, in the last century, this Court may have justified the exclusion of voters from the electoral\nprocess for fear that they would vote to change laws considered important by a temporal majority,\nI have little doubt that we would not countenance such a purpose today. The process of democracy\nis one of change. Our laws are not frozen into immutable form, they are constantly in the process\nof revision in response to the needs of a changing society. The public interest, as conceived by a\nmajority of the voting public, is constantly undergoing reexamination. This Court\xe2\x80\x99s holding in Davis\nand Murphy that a State may disenfranchise a class of voters to \xe2\x80\x9cwithdraw all political influence from\nthose who are practically hostile\xe2\x80\x9d to the existing order, strikes at the very heart of the democratic\n414 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cprocess. A temporal majority could use such a power to preserve inviolate its view of the social order\nsimply by disenfranchising those with different views. Voters who opposed the repeal of prohibition\ncould have disenfranchised those who advocated repeal \xe2\x80\x9cto prevent persons from being enabled by\ntheir votes to defeat the criminal laws of the country.\xe2\x80\x9d Today, presumably those who support the\nlegalization of marihuana could be barred from the ballot box for much the same reason. The ballot\nis the democratic system\xe2\x80\x99s coin of the realm. To condition its exercise on support of the established\norder is to debase that currency beyond recognition. Rather than resurrect Davis and Murphy, I would\nexpressly disavow any continued adherence to the dangerous notions therein expressed.\nThe public purposes asserted to be served by disenfranchisement have been found wanting in many\nquarters. When this suit was filed, 23 States allowed ex-felons full access to the ballot. Since that\ntime, four more States have joined their ranks. Shortly after lower federal courts sustained New\nYork\xe2\x80\x99s and Florida\xe2\x80\x99s disenfranchisement provisions, the legislatures repealed those laws. Congress has\nrecently provided for the restoration of felons\xe2\x80\x99 voting rights at the end of sentence or parole in the\nDistrict of Columbia. D.C. Code (1973). The National Conference on Uniform State Laws, the American\nLaw Institute, the National Probation and Parole Association, the National Advisory Commission on\nCriminal Justice Standards and Goals, the President\xe2\x80\x99s Commission on Law Enforcement and the\nAdministration of Justice, the California League of Women Voters, the National Democratic Party, and\nthe Secretary of State of California have all strongly endorsed full suffrage rights for former felons.\nThe disenfranchisement of ex-felons had \xe2\x80\x9cits origin in the fogs and fictions of feudal jurisprudence\nand doubtless has been brought forward into modern statutes without fully realizing either the effect\nof its literal significance or the extent of its infringement upon the spirit of our system of government.\xe2\x80\x9d\nByers v. Sun Savings Bank (Oklahoma 1914). I think it clear that measured against the standards of this\nCourt\xe2\x80\x99s modern equal protection jurisprudence, the blanket disenfranchisement of ex-felons cannot\nstand.\nI respectfully dissent.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=39#h5p-36\n\nCHAPTER SIX: Fundamental Rights and Equal Protection | 415\n\n\x0cAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=39#h5p-37\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=39#h5p-35\n\nNotes\n1. Chief Justice Earl Warren, writing for the Court in Reynolds v. Sims Court rejects the \xe2\x80\x9cfederal\nanalogy\xe2\x80\x9d relating to the United States Senate. Many political scientists view the United States Senate\nas being one of the \xe2\x80\x9cleast representative representative bodies\xe2\x80\x9d in the world. The illustrative example\ncompares Wyoming, the least populous state with fewer than 600,000 people in 2010, with California,\nthe most populous state, having more than 37 million people in the 2010 census. Thus, in the United\nStates Senate, a vote in Wyoming has more than 66 times the effect of a vote in California.\nNote that Article V of the Constitution, regarding the process for Constitutional amendment, not only\nexempted amendments regarding slavery until 1808, but also provides \xe2\x80\x9cno state, without its consent,\nshall be deprived of its equal suffrage in the Senate.\xe2\x80\x9d\n2. Bush v. Gore raises more questions than it answers. One still-debated question is whether the\nUnited States Supreme Court selected the winner of the 2000 election. The per curiam opinion\xe2\x80\x99s final\nsection seeks to dispel this view; is it convincing?\n3. After Richardson v. Ramirez, what are the strategies, both constitutional and otherwise, that\nadvocates for ending felony disenfranchisement might pursue?\n\nIII. Travel\nAttorney Gen. of New York v. Soto-Lopez\n476 U.S. 898 (1986)\nBRENNAN, J., ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN OPINION, IN WHICH MARSHALL,\n416 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cBLACKMUN, AND POWELL, JJ., JOINED. BURGER, C.J AND WHITE, J., FILED OPINIONS CONCURRING IN THE JUDGMENT.\nSTEVENS, J., FILED A DISSENTING OPINION. O\xe2\x80\x99CONNOR, J., FILED A DISSENTING OPINION, IN WHICH REHNQUIST AND\nSTEVENS, JJ., JOINED.\nJUSTICE BRENNAN ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN OPINION, IN WHICH JUSTICE\nMARSHALL, JUSTICE BLACKMUN, AND JUSTICE POWELL JOIN.\nThe question presented by this appeal is whether a preference in civil service employment\nopportunities offered by the State of New York solely to resident veterans who lived in the State at\nthe time they entered military service violates the constitutional rights of resident veterans who lived\noutside the State when they entered military service.\n\nI\nThe State of New York, through its Constitution, N. Y. Const., Art. V, 6, and its Civil Service Law, N.\nY. Civ. Serv. Law 85 (McKinney 1983 and Supp. 1986), grants a civil service employment preference, in\nthe form of points added to examination scores, to New York residents who are honorably discharged\nveterans of the United States Armed Forces, who served during time of war, and who were residents\nof New York when they entered military service. This preference may be exercised only once, either\nfor original hiring or for one promotion. N. Y. Const., Art. V, \xc2\xa7 6.\nAppellees, Eduardo Soto-Lopez and Eliezer Baez-Hernandez, are veterans of the United States Army\nand long-time residents of New York. Both men claim to have met all the eligibility criteria for the\nNew York State civil service preference except New York residence when they entered the Army. Both\nSoto-Lopez and Baez-Hernandez passed New York City civil service examinations, but were denied\nthe veterans\xe2\x80\x99 preference by the New York City Civil Service Commission because they were residents\nof Puerto Rico at the time they joined the military. Appellees sued the city in Federal District Court,\nalleging that the requirement of residence when they joined the military violated the Equal Protection\nClause of the Fourteenth Amendment and the constitutionally protected right to travel. The Attorney\nGeneral of the State of New York intervened as a defendant.\nThe District Court dismissed appellees\xe2\x80\x99 complaint, holding that this Court\xe2\x80\x99s summary affirmance in\nAugust v. Bronstein (1974), a case in which a three-judge panel upheld against equal protection and\nright-to-travel challenges the same sections of the New York State Constitution and Civil Service\nLaw at issue in the instant action, compelled that result. The Court of Appeals for the Second Circuit\nreversed. It concluded that August had implicitly been overruled by our more recent decision in\nZobel v. Williams (1982), and held that the prior residence requirement of the New York civil service\npreference offends both the Equal Protection Clause and the right to travel. The Court of Appeals\nremanded with various instructions, including the direction that the District Court permanently\nenjoin the defendants from denying bonus points to otherwise qualified veterans who were not\nresidents of New York at the time they entered the military service. We noted probable jurisdiction of\nthis appeal of the Attorney General of New York. We affirm.\n\nCHAPTER SIX: Fundamental Rights and Equal Protection | 417\n\n\x0cII\n\xe2\x80\x9c\xe2\x80\x98[F]reedom to travel throughout the United States has long been recognized as a basic right under\nthe Constitution.\xe2\x80\x99\xe2\x80\x9d See, e. g., Passenger Cases (1849) (Taney, C. J., dissenting); Crandall v. Nevada (1868);\nPaul v. Virginia (1869); Edwards v. California (1941); Kent v. Dulles (1958); Shapiro v. Thompson (1969);\nOregon v. Mitchell (1970); Memorial Hospital v. Maricopa County (1974). And, it is clear that the freedom\nto travel includes the \xe2\x80\x9cfreedom to enter and abide in any State in the Union.\xe2\x80\x9d\nThe textual source of the constitutional right to travel, or, more precisely, the right of free interstate\nmigration, though, has proved elusive. It has been variously assigned to the Privileges and Immunities\nClause of Art. IV, to the Commerce Clause, and to the Privileges or Immunities Clause of the\nFourteenth Amendment. The right has also been inferred from the federal structure of government\nadopted by our Constitution. However, in light of the unquestioned historic acceptance of the\nprinciple of free interstate migration, and of the important role that principle has played in\ntransforming many States into a single Nation, we have not felt impelled to locate this right\ndefinitively in any particular constitutional provision. Whatever its origin, the right to migrate is firmly\nestablished and has been repeatedly recognized by our cases.\nA state law implicates the right to travel when it actually deters such travel, when impeding travel is\nits primary objective, or when it uses \xe2\x80\x9c\xe2\x80\x98any classification which serves to penalize the exercise of that\nright.\xe2\x80\x99\xe2\x80\x9d Our right-to-migrate cases have principally involved the latter, indirect manner of burdening\nthe right. More particularly, our recent cases have dealt with state laws that, by classifying residents\naccording to the time they established residence, resulted in the unequal distribution of rights and\nbenefits among otherwise qualified bona fide residents.\nBecause the creation of different classes of residents raises equal protection concerns, we have\nalso relied upon the Equal Protection Clause in these cases. Whenever a state law infringes a\nconstitutionally protected right, we undertake intensified equal protection scrutiny of that law. See, e.\ng., Cleburne v. Cleburne Living Center, Inc. (1985); Plyler v. Doe (1982); San Antonio Independent School\nDistrict v. Rodriguez (1973); Shapiro v. Thompson (1973). Thus, in several cases, we asked expressly\nwhether the distinction drawn by the State between older and newer residents burdens the right to\nmigrate. Where we found such a burden, we required the State to come forward with a compelling\njustification. See, e. g., Shapiro v. Thompson. In other cases, where we concluded that the contested\nclassifications did not survive even rational-basis scrutiny, we had no occasion to inquire whether\nenhanced scrutiny was appropriate. The analysis in all of these cases, however, is informed by the\nsame guiding principle \xe2\x80\x93 the right to migrate protects residents of a State from being disadvantaged,\nor from being treated differently, simply because of the timing of their migration, from other similarly\nsituated residents.\nNew York\xe2\x80\x99s eligibility requirements for its civil service preference conditions a benefit on New York\nresidence at a particular past time in an individual\xe2\x80\x99s life. It favors those veterans who were New York\nresidents at a past fixed point over those who were not New York residents at the same point in\ntheir lives. Our cases have established that similar methods of favoring \xe2\x80\x9cprior\xe2\x80\x9d residents over \xe2\x80\x9cnewer\xe2\x80\x9d\nones, such as limiting a benefit to those who resided in the State by a fixed past date, granting\n418 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cincrementally greater benefits for each year of residence, and conditioning eligibility for certain\nbenefits on completion of a fixed period of residence, warrant careful judicial review. But, our cases\nhave also established that only where a State\xe2\x80\x99s law \xe2\x80\x9c\xe2\x80\x98operates to penalize those persons . . . who have\nexercised their constitutional right of interstate migration\xe2\x80\x99\xe2\x80\x9d is heightened scrutiny triggered.\nOur task in this case, then, is first to determine whether New York\xe2\x80\x99s restriction of its civil service\npreference to veterans who entered the Armed Forces while residing in New York operates to penalize\nthose persons who have exercised their right to migrate. If we find that it does, appellees must prevail\nunless New York can demonstrate that its classification is necessary to accomplish a compelling state\ninterest.\n\nIII\nA\nIn previous cases, we have held that even temporary deprivations of very important benefits and\nrights can operate to penalize migration. For example, in Shapiro {v. Thompson} * * * * we found\nthat recently arrived indigent residents were deprived of life\xe2\x80\x99s necessities by durational residence\nrequirements for welfare assistance and for free, nonemergency medical care, respectively, which\nwere available to other poor residents. * * * * The fact that these deprivations were temporary did\nnot offset the Court\xe2\x80\x99s conclusions that they were so severe and worked such serious inequities among\notherwise qualified residents that they effectively penalized new residents for the exercise of their\nrights to migrate.\nMore recently, in Hooper v. Bernalillo (1985), and Zobel v. Williams (1982), we struck down state laws\nthat created permanent distinctions among residents based on the length or timing of their residence\nin the State. At issue in Hooper was a New Mexico statute that granted a tax exemption to Vietnam\nveterans who resided in the State before May 8, 1976. Zobel concerned an Alaska statute granting\nresidents one state mineral income dividend unit for each year of residence subsequent to 1959.\nBecause we employed rational-basis equal protection analysis in those cases, we did not face directly\nthe question whether the contested laws operated to penalize interstate migration. Nonetheless,\nthe conclusion that they did penalize migration may be inferred from our determination that \xe2\x80\x9cthe\nConstitution will not tolerate a state benefit program that \xe2\x80\x98creates fixed, permanent distinctions . . .\nbetween . . . classes of concededly bona fide residents, based on how long they have been in the State.\xe2\x80\x99\xe2\x80\x9d\nSoto-Lopez and Baez-Hernandez have been denied a significant benefit that is granted to all veterans\nsimilarly situated except for State of residence at the time of their entry into the military. While the\nbenefit sought here may not rise to the same level of importance as the necessities of life and the\nright to vote, it is unquestionably substantial. The award of bonus points can mean the difference\nbetween winning or losing civil service employment, with its attendant job security, decent pay, and\ngood benefits. Furthermore, appellees have been permanently deprived of the veterans\xe2\x80\x99 credits that\nthey seek. As the Court of Appeals observed: \xe2\x80\x9cThe veteran\xe2\x80\x99s ability to satisfy the New York residence\nrequirement is . . . fixed. He either was a New York resident at the time of his initial induction or he\nCHAPTER SIX: Fundamental Rights and Equal Protection | 419\n\n\x0cwas not; he cannot earn a change in status.\xe2\x80\x9d Such a permanent deprivation of a significant benefit,\nbased only on the fact of nonresidence at a past point in time, clearly operates to penalize appellees\nfor exercising their rights to migrate.\n\nB\nNew York offers four interests in justification of its fixed point residence requirement: (1) the\nencouragement of New York residents to join the Armed Services; (2) the compensation of residents\nfor service in time of war by helping these veterans reestablish themselves upon coming home; (3)\nthe inducement of veterans to return to New York after wartime service; and (4) the employment of\na \xe2\x80\x9cuniquely valuable class of public servants\xe2\x80\x9d who possess useful experience acquired through their\nmilitary service. All four justifications fail to withstand heightened scrutiny on a common ground \xe2\x80\x93\neach of the State\xe2\x80\x99s asserted interests could be promoted fully by granting bonus points to all otherwise\nqualified veterans. New York residents would still be encouraged to join the services. Veterans who\nserved in time of war would be compensated. And, both former New Yorkers and prior residents of\nother States would be drawn to New York after serving the Nation, thus providing the State with an\neven larger pool of potentially valuable public servants.\n* * * * Because New York could accomplish its purposes without penalizing the right to migrate by\nawarding special credits to all qualified veterans, the State is not free to promote its interests through\na preference system that incorporates a prior residence requirement.\nTwo of New York\xe2\x80\x99s asserted interests have additional weaknesses. First, the availability of the\npreference to inductees as well as enlistees undercuts the State\xe2\x80\x99s contention that one of the most\nimportant purposes of the veterans\xe2\x80\x99 credit is to encourage residents to enlist in the services. Second,\nthe fact that eligibility for bonus points is not limited to the period immediately following a veteran\xe2\x80\x99s\nreturn from war casts doubt on New York\xe2\x80\x99s asserted purpose of easing the transition from wartime\nmilitary conditions to civilian life, for, presumably, a veteran of the Korean War could take a civil\nservice examination and receive the bonus points tomorrow, 30 years after his homecoming. The\nState\xe2\x80\x99s failure to limit the credit to enlistees recently returned to New York from war strongly suggests\nthat the State\xe2\x80\x99s principal interest is simply in rewarding its residents for service to their country.\nCompensating veterans for their past sacrifices by providing them with advantages over nonveteran\ncitizens is a long-standing policy of our Federal and State Governments. See, e. g., Personnel\nAdministrator of Massachusetts v. Feeney (1979). Nonetheless, this policy, even if deemed compelling,\ndoes not support a distinction between resident veterans based on their residence when they joined\nthe military. Members of the Armed Forces serve the Nation as a whole. While a service person\xe2\x80\x99s home\nState doubtlessly derives indirect benefit from his or her service, the State benefits equally from the\ncontributions to our national security made by other service personnel. \xe2\x80\x9cPermissible discriminations\nbetween persons\xe2\x80\x9d must be correlated to \xe2\x80\x9ctheir relevant characteristics.\xe2\x80\x9d Zobel (Brennan, J.,\nconcurring). Because prior residence has only a tenuous relation, if any, to the benefit New York\nreceives from all Armed Forces personnel, the goal of rewarding military service offers no support for\nNew York\xe2\x80\x99s fixed point residence requirement.\n420 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cIV\nIn sum, the provisions of New York\xe2\x80\x99s Constitution, Art. V, \xc2\xa7 6, and Civil Service Law 85, which limit the\naward of a civil service employment preference to resident veterans who lived in New York at the time\nthey entered the Armed Forces, effectively penalize otherwise qualified resident veterans who do not\nmeet the prior residence requirement for their exercise of the right to migrate. The State has not met\nits heavy burden of proving that it has selected a means of pursuing a compelling state interest which\ndoes not impinge unnecessarily on constitutionally protected interests. Consequently, we conclude\nthat New York\xe2\x80\x99s veterans\xe2\x80\x99 preference violates appellees\xe2\x80\x99 constitutionally protected rights to migrate\nand to equal protection of the law.\nOnce veterans establish bona fide residence in a State, they \xe2\x80\x9cbecome the State\xe2\x80\x99s \xe2\x80\x98own\xe2\x80\x99 and may not be\ndiscriminated against solely on the basis of [the date of] their arrival in the State.\xe2\x80\x9d For as long as New\nYork chooses to offer its resident veterans a civil service employment preference, the Constitution\nrequires that it do so without regard to residence at the time of entry into the services. Accordingly,\nthe judgment of the Court of Appeals is\nAffirmed.\nJUSTICE O\xe2\x80\x99CONNOR, WITH WHOM JUSTICE REHNQUIST AND JUSTICE STEVENS JOIN, DISSENTING.\nThe Court today holds unconstitutional the preference in public employment opportunities New York\noffers to resident wartime veterans who resided in New York when they entered military service.\nBecause I believe that New York\xe2\x80\x99s veterans\xe2\x80\x99 preference scheme is not constitutionally offensive under\nthe Equal Protection Clause, does not penalize some free-floating \xe2\x80\x9cright to migrate,\xe2\x80\x9d and does not\nviolate the Privileges and Immunities Clause of Art. IV, \xc2\xa7 2, of the Constitution, I dissent.\n\nI\nThe plurality\xe2\x80\x99s constitutional analysis runs generally as follows: because the classification imposed by\nNew York\xe2\x80\x99s limited, one-time veterans\xe2\x80\x99 civil service preference \xe2\x80\x9cpenalizes\xe2\x80\x9d appellees\xe2\x80\x99 constitutional\n\xe2\x80\x9cright to migrate,\xe2\x80\x9d the preference program must be subjected to heightened scrutiny, which it does not\nsurvive because it is insufficiently narrowly tailored to serve its asserted purposes. On the strength\nof this reasoning, the plurality concludes that the preference program violates both appellees\xe2\x80\x99\nconstitutional \xe2\x80\x9cright to migrate\xe2\x80\x9d and their right to equal protection of the law, although it does not\nmake clear how much of its analysis is necessary or sufficient to find a violation of the \xe2\x80\x9cright to\nmigrate\xe2\x80\x9d independently of an Equal Protection Clause violation.\nIn pursuing this new dual analysis, the plurality simply rejects the equal protection approach the\nCourt has previously employed in similar cases, without bothering to explain why its novel use of\nboth \xe2\x80\x9cright to migrate\xe2\x80\x9d analysis and strict equal protection scrutiny is more appropriate, necessary\nor doctrinally coherent. Indeed, the plurality does not even feel \xe2\x80\x9cimpelled to locate [\xe2\x80\x98the right to\nmigrate\xe2\x80\x99] definitively in any particular constitutional provision,\xe2\x80\x9d despite the fact that its ruling rests\nCHAPTER SIX: Fundamental Rights and Equal Protection | 421\n\n\x0cin major part on its determination that the preference scheme penalizes that right. The plurality\xe2\x80\x99s\nrefusal to amplify its opinion further is even more remarkable given that the Court is overturning the\nvery provisions of New York\xe2\x80\x99s Constitution and its Civil Service Law which it upheld against the same\nchallenges just 12 years ago. See August v. Bronstein, summarily aff\xe2\x80\x99d (1974).\nThe Chief Justice {concurring} finds it unnecessary to address the proper analytical role of the \xe2\x80\x9cright\nto travel\xe2\x80\x9d in this case because he believes that the New York scheme cannot survive rational basis\nscrutiny purely as a matter of equal protection law. Yet The Chief Justice\xe2\x80\x99s position depends in part on\nthe assumption that New York\xe2\x80\x99s desire \xe2\x80\x9cto reward citizens for past contributions . . . is not a legitimate\nstate purpose.\xe2\x80\x9d This assumption is not required by anything in the Equal Protection Clause; rather, \xe2\x80\x9ca\nfull reading of Shapiro v. Thompson (1969) * * * * reveals [that] the Court has rejected this objective\nonly when its implementation would abridge an interest in interstate travel or migration.\xe2\x80\x9d\n* * * * I also continue to believe that a State\xe2\x80\x99s desire to compensate its citizens for their prior\ncontributions is \xe2\x80\x9cneither inherently invidious nor irrational,\xe2\x80\x9d either under the Court\xe2\x80\x99s \xe2\x80\x9cright to\nmigrate\xe2\x80\x9d or under some undefined, substantive component of the Equal Protection Clause. This case\npresents one of those instances in which the recognition of state citizens\xe2\x80\x99 past sacrifices constitutes\na valid state interest that does not infringe any constitutionally protected interest * * * *\n\nII\nIn my view, the New York veterans\xe2\x80\x99 preference scheme weathers constitutional scrutiny under any\nof the theories propounded by the Court. The plurality acknowledges that heightened scrutiny is\nappropriate only if the statutory classification \xe2\x80\x9cpenalize[s],\xe2\x80\x9d \xe2\x80\x9cactually deters,\xe2\x80\x9d or is primarily intended\nto \xe2\x80\x9cimped[e]\xe2\x80\x9d the exercise of the right to travel. * * * *\nThe New York law certainly does not directly restrict or burden appellees\xe2\x80\x99 freedom to move to\nNew York and to establish residence there by imposing discriminatory fees, taxes, or other direct\nrestraints. Cf. The Passenger Cases (1849). The New York preference program does not permanently\ndeprive appellees of the right to participate in some fundamental or even \xe2\x80\x9csignificant\xe2\x80\x9d activity, for\n\xe2\x80\x9cpublic employment is not a constitutional right . . . and the States have wide discretion in framing\nemployee qualifications.\xe2\x80\x9d Personnel Administrator of Massachusetts v. Feeney (1979). Nor does the\nprogram indirectly penalize migration by depriving the newcomers of fundamental rights or essential\ngovernmental services until they have resided in the State for a set period of time.\nFinally, the New York scheme does not effectively penalize those who exercise their fundamental right\nto settle in the State of their choice by requiring newcomers to accept a status inferior to that of all\noldtime residents of New York upon their arrival. Those veterans who were not New York residents\nwhen they joined the United States Armed Forces, who subsequently move to New York, and who\nendeavor to secure civil service employment are treated exactly the same as the vast majority of New\nYork citizens; they are in no sense regarded as \xe2\x80\x9csecond-class citizens\xe2\x80\x9d when compared with the vast\nmajority of New Yorkers or even the majority of the candidates against whom they must compete in\nobtaining civil employment. To the extent that persons such as appellees labor under any practical\ndisability, it is a disability that they share in equal measure with countless other New York residents,\n422 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cincluding New York residents who joined the Armed Forces from New York but are ineligible for the\nveterans\xe2\x80\x99 preference for other reasons.\nThe only persons who arguably have an advantage based on their prior residency in New York in\nrelation to persons in appellees\xe2\x80\x99 position are a discrete group of veterans who joined the Armed Forces\nwhile New York residents, who served during wartime, who returned to New York, and who elected\nto seek public employment. Even that group does not enjoy an unqualified advantage over appellees\nbased on their prior residence. New York\xe2\x80\x99s veterans\xe2\x80\x99 preference scheme requires that veterans satisfy\na number of preconditions, of which prior residency is only one, before they qualify for the preference.\nMoreover, the preference only increases the possibility of securing a civil service appointment; it does\nnot guarantee it. Those newly arrived veterans who achieve a sufficiently high score on the exam\nmay not be disadvantaged at all by the preference program; conversely, the chances of those who\nreceive a very low score may not be affected by the fact that their competitors received bonus points.\nFinally, the bonus program is a one-time benefit. Veterans who join the service in New York, who\nsatisfy the other statutory requirements, and who achieve a sufficiently high score on the exam to\nbring them within range of securing employment may only use the bonus points on one examination\nfor appointment and in one job for promotion. Thus, persons such as appellees are not forced to labor\nunder a \xe2\x80\x9ccontinuous disability\xe2\x80\x9d by comparison even to this discrete group of New York citizens.\nCertainly the New York veterans\xe2\x80\x99 preference program imposes a less direct burden on a less\n\xe2\x80\x9csignificant\xe2\x80\x9d interest than many resident-preference programs that this Court has upheld without\ndifficulty. For example, this Court has summarily affirmed certain state residency requirements for\nstate college tuition rates, Sturgis v. Washington (1973), and a limited eligibility statute in New York\nfor scholarship assistance, Spatt v. New York (1973), even though those requirements constituted\na potentially prohibitive burden on access to \xe2\x80\x9cimportant\xe2\x80\x9d educational opportunities, San Antonio\nIndependent School District v. Rodriguez (1973). The Court has also upheld a 1-year durational residence\nrequirement for eligibility to obtain a divorce in state courts, Sosna v. Iowa, even though the right to\nterminate a marriage has been deemed in some sense \xe2\x80\x9cfundamental.\xe2\x80\x9d See Boddie v. Connecticut (1971).\nIn sum, finding that this scheme in theory or practical effect constitutes a \xe2\x80\x9cpenalty\xe2\x80\x9d on appellees\xe2\x80\x99\nfundamental right to settle in New York or on their \xe2\x80\x9cright to migrate\xe2\x80\x9d seems to me ephemeral, and\ncompletely unnecessary to safeguard the constitutional purpose of \xe2\x80\x9cmaintaining a Union rather than\na mere \xe2\x80\x98league of States.\xe2\x80\x99\xe2\x80\x9d Thus, heightened scrutiny, either under the \xe2\x80\x9cright to migrate\xe2\x80\x9d or the Equal\nProtection Clause is inappropriate.\nUnder rational basis review, New York\xe2\x80\x99s program plainly passes constitutional muster. New York\ncontends that its veterans\xe2\x80\x99 employment preference serves as an expression of gratitude to veterans\nwho entered the service as New York residents. Even the plurality acknowledges the legitimacy of\nthis state purpose. Indeed, it is difficult to impeach this interest, for \xe2\x80\x9c[o]ur country has a longstanding\npolicy of compensating veterans for their past contributions by providing them with numerous\nadvantages.\xe2\x80\x9d * * * *\nI have difficulty believing that the veterans\xe2\x80\x99 preference scheme employed by New York does not\nrationally relate to this legitimate state interest. I had certainly thought a State could award a medal\nto all New York veterans of designated wars, or that it could erect memorials in honor of certain\nCHAPTER SIX: Fundamental Rights and Equal Protection | 423\n\n\x0cresidents returning from particular armed conflicts; it is hardly irrational to employ a means which\ngives certain returning wartime veterans a more tangible and useful expression of gratitude by way\nof employment preferences. I also find it hard to credit the idea that the Equal Protection Clause\nrequires New York to reward the sacrifices of all those who joined the Armed Forces from other States\nand came to reside in New York if it wishes to reward the service of those who represented New York\nin the Armed Forces. Certainly those veterans who represented other States in the military aided New\nYork by aiding the Nation, and suffered in equal measure with New York veterans, but that is not the\nissue. New York is not expressing gratitude for the prior resident\xe2\x80\x99s service to, and sacrifice for, the\nNation as much as it is attempting to say \xe2\x80\x9cthank you\xe2\x80\x9d to those who personified New York\xe2\x80\x99s sacrifice\nand effort to \xe2\x80\x9cdo its part\xe2\x80\x9d in supporting this Nation\xe2\x80\x99s war efforts. The prior residence of the individual\nseeking the statutory benefit clearly is a \xe2\x80\x9crelevant characteristic\xe2\x80\x9d to this legitimate and longstanding\nstate interest and is one which has a manifest relation to the furtherance of that interest.\n* * * * The modest scheme at issue here does not penalize in a constitutional sense veterans who\njoined the Armed Forces in other States for choosing to eventually settle in New York, and does not\ndeny them equal protection. I would reverse the judgment of the Court of Appeals for the Second\nCircuit.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=39#h5p-34\n\n424 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cCHAPTER SEVEN: The Privileges Or\nImmunities Clause\nSaenz v. Roe\n526 U.S. 489 (1999)\nSTEVENS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH O\xe2\x80\x99CONNOR, SCALIA, KENNEDY, SOUTER, GINSBURG, AND\nBREYER, JJ., JOINED. REHNQUIST, C. J., FILED A DISSENTING OPINION, IN WHICH THOMAS, J., JOINED. THOMAS, J., FILED A\nDISSENTING OPINION, IN WHICH REHNQUIST, C. J., JOINED.\nJUSTICE STEVENS DELIVERED THE OPINION OF THE COURT.\nIn 1992, California enacted a statute limiting the maximum welfare benefits available to newly arrived\nresidents. The scheme limits the amount payable to a family that has resided in the State for less than\n12 months to the amount payable by the State of the family\xe2\x80\x99s prior residence. The questions presented\nby this case are whether the 1992 statute was constitutional when it was enacted and, if not, whether\nan amendment to the Social Security Act enacted by Congress in 1996 affects that determination.\n\nI\nCalifornia is not only one of the largest, most populated, and most beautiful States in the Nation; it\nis also one of the most generous. Like all other States, California has participated in several welfare\nprograms authorized by the Social Security Act and partially funded by the Federal Government. Its\nprograms, however, provide a higher level of benefits and serve more needy citizens than those of\nmost other States. In one year the most expensive of those programs, Aid to Families with Dependent\nChildren (AFDC), which was replaced in 1996 with Temporary Assistance to Needy Families (TANF),\nprovided benefits for an average of 2,645,814 persons per month at an annual cost to the State of $2.9\nbillion. In California the cash benefit for a family of two\xe2\x80\x93a mother and one child\xe2\x80\x93is $456 a month, but\nin the neighboring State of Arizona, for example, it is only $275.\nIn 1992, in order to make a relatively modest reduction in its vast welfare budget, the California\nLegislature enacted \xc2\xa7 11450.03 of the state Welfare and Institutions Code. That section sought to\nchange the California AFDC program by limiting new residents, for the first year they live in California,\nto the benefits they would have received in the State of their prior residence. Because in 1992 a\nstate program either had to conform to federal specifications or receive a waiver from the Secretary\nof Health and Human Services in order to qualify for federal reimbursement, \xc2\xa7 11450.03 required\napproval by the Secretary to take effect. In October 1992, the Secretary issued a waiver purporting to\ngrant such approval.\nCHAPTER SEVEN: The Privileges Or Immunities Clause | 425\n\n\x0cOn December 21, 1992, three California residents who were eligible for AFDC benefits filed an action\nin the Eastern District of California challenging the constitutionality of the durational residency\nrequirement in \xc2\xa7 11450.03. Each plaintiff alleged that she had recently moved to California to live\nwith relatives in order to escape abusive family circumstances. One returned to California after living\nin Louisiana for seven years, the second had been living in Oklahoma for six weeks and the third\ncame from Colorado. Each alleged that her monthly AFDC grant for the ensuing 12 months would be\nsubstantially lower under \xc2\xa7 11450.03 than if the statute were not in effect. Thus, the former residents\nof Louisiana and Oklahoma would receive $190 and $341 respectively for a family of three even though\nthe full California grant was $641; the former resident of Colorado, who had just one child, was limited\nto $280 a month as opposed to the full California grant of $504 for a family of two.\nThe District Court issued a temporary restraining order and, after a hearing, preliminarily enjoined\nimplementation of the statute. District Judge Levi found that the statute \xe2\x80\x9cproduces substantial\ndisparities in benefit levels and makes no accommodation for the different costs of living that exist\nin different states.\xe2\x80\x9d Relying primarily on our decisions in Shapiro v. Thompson (1969), and Zobel v.\nWilliams (1982), he concluded that the statute placed \xe2\x80\x9ca penalty on the decision of new residents\nto migrate to the State and be treated on an equal basis with existing residents.\xe2\x80\x9d In his view, if\nthe purpose of the measure was to deter migration by poor people into the State, it would be\nunconstitutional for that reason. And even if the purpose was only to conserve limited funds, the State\nhad failed to explain why the entire burden of the saving should be imposed on new residents. The\nCourt of Appeals summarily affirmed for the reasons stated by the District Judge.\nWe granted the State\xe2\x80\x99s petition for certiorari. We were, however, unable to reach the merits because\nthe Secretary\xe2\x80\x99s approval of \xc2\xa7 11450.03 had been invalidated in a separate proceeding, and the State had\nacknowledged that the Act would not be implemented without further action by the Secretary. We\nvacated the judgment and directed that the case be dismissed. Anderson v. Green (1995). Accordingly,\n\xc2\xa7 11450.03 remained inoperative until after Congress enacted the Personal Responsibility and Work\nOpportunity Reconciliation Act of 1996 PRWORA, 110 Stat. 2105.\nPRWORA replaced the AFDC program with TANF. The new statute expressly authorizes any State\nthat receives a block grant under TANF to \xe2\x80\x9capply to a family the rules (including benefit amounts)\nof the [TANF] program \xe2\x80\xa6 of another State if the family has moved to the State from the other\nState and has resided in the State for less than 12 months.\xe2\x80\x9d With this federal statutory provision in\neffect, California no longer needed specific approval from the Secretary to implement \xc2\xa7 11450.03. The\nCalifornia Department of Social Services therefore issued an \xe2\x80\x9cAll County Letter\xe2\x80\x9d announcing that the\nenforcement of \xc2\xa7 11450.03 would commence on April 1, 1997.\nThe All County Letter clarifies certain aspects of the statute. Even if members of an eligible family had\nlived in California all of their lives, but left the State \xe2\x80\x9con January 29th, intending to reside in another\nstate, and returned on April 15th,\xe2\x80\x9d their benefits are determined by the law of their State of residence\nfrom January 29 to April 15, assuming that that level was lower than California\xe2\x80\x99s. Moreover, the lower\nlevel of benefits applies regardless of whether the family was on welfare in the State of prior residence\nand regardless of the family\xe2\x80\x99s motive for moving to California. The instructions also explain that the\nresidency requirement is inapplicable to families that recently arrived from another country.\n\n426 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cII\nOn April 1, 1997, the two respondents filed this action in the Eastern District of California making\nessentially the same claims asserted by the plaintiffs in Anderson v. Green, but also challenging the\nconstitutionality of PRWORA\xe2\x80\x99s approval of the durational residency requirement. As in Green, the\nDistrict Court issued a temporary restraining order and certified the case as a class action. The Court\nalso advised the Attorney General of the United States that the constitutionality of a federal statute\nhad been drawn into question, but she did not seek to intervene or to file an amicus brief. Reasoning\nthat PRWORA permitted, but did not require, States to impose durational residency requirements,\nJudge Levi concluded that the existence of the federal statute did not affect the legal analysis in his\nprior opinion in Green.\nHe did, however, make certain additional comments on the parties\xe2\x80\x99 factual contentions. He noted\nthat the State did not challenge plaintiffs\xe2\x80\x99 evidence indicating that, although California benefit levels\nwere the sixth highest in the Nation in absolute terms, when housing costs are factored in, they\nrank 18th; that new residents coming from 43 States would face higher costs of living in California;\nand that welfare benefit levels actually have little, if any, impact on the residential choices made by\npoor people. On the other hand, he noted that the availability of other programs such as homeless\nassistance and an additional food stamp allowance of $1 in stamps for every $3 in reduced welfare\nbenefits partially offset the disparity between the benefits for new and old residents. Notwithstanding\nthose ameliorating facts, the State did not disagree with plaintiffs\xe2\x80\x99 contention that \xc2\xa7 11450.03 would\ncreate significant disparities between newcomers and welfare recipients who have resided in the\nState for over one year.\nThe State relied squarely on the undisputed fact that the statute would save some $10.9 million in\nannual welfare costs\xe2\x80\x93an amount that is surely significant even though only a relatively small part of\nits annual expenditures of approximately $2.9 billion for the entire program. It contended that this\ncost saving was an appropriate exercise of budgetary authority as long as the residency requirement\ndid not penalize the right to travel. The State reasoned that the payment of the same benefits that\nwould have been received in the State of prior residency eliminated any potentially punitive aspects\nof the measure. Judge Levi concluded, however, that the relevant comparison was not between new\nresidents of California and the residents of their former States, but rather between the new residents\nand longer term residents of California. He therefore again enjoined the implementation of the statute.\nWithout finally deciding the merits, the Court of Appeals affirmed his issuance of a preliminary\ninjunction. It agreed with the District Court\xe2\x80\x99s view that the passage of PRWORA did not affect\nthe constitutional analysis, that respondents had established a probability of success on the merits\nand that class members might suffer irreparable harm if \xc2\xa7 11450.03 became operative. Although the\ndecision of the Court of Appeals is consistent with the views of other federal courts that have\naddressed the issue, we granted certiorari because of the importance of the case. We now affirm.\n\nCHAPTER SEVEN: The Privileges Or Immunities Clause | 427\n\n\x0cIII\nThe word \xe2\x80\x9ctravel\xe2\x80\x9d is not found in the text of the Constitution. Yet the \xe2\x80\x9cconstitutional right to travel\nfrom one State to another\xe2\x80\x9d is firmly embedded in our jurisprudence. Indeed, as Justice Stewart\nreminded us in Shapiro v. Thompson (1969), the right is so important that it is \xe2\x80\x9cassertable against\nprivate interference as well as governmental action \xe2\x80\xa6 a virtually unconditional personal right,\nguaranteed by the Constitution to us all.\xe2\x80\x9d (concurring opinion).\nIn Shapiro, we reviewed the constitutionality of three statutory provisions that denied welfare\nassistance to residents of Connecticut, the District of Columbia, and Pennsylvania, who had resided\nwithin those respective jurisdictions less than one year immediately preceding their applications for\nassistance. Without pausing to identify the specific source of the right, we began by noting that the\nCourt had long \xe2\x80\x9crecognized that the nature of our Federal Union and our constitutional concepts of\npersonal liberty unite to require that all citizens be free to travel throughout the length and breadth\nof our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict\nthis movement.\xe2\x80\x9d We squarely held that it was \xe2\x80\x9cconstitutionally impermissible\xe2\x80\x9d for a State to enact\ndurational residency requirements for the purpose of inhibiting the migration by needy persons into\nthe State. We further held that a classification that had the effect of imposing a penalty on the exercise\nof the right to travel violated the Equal Protection Clause \xe2\x80\x9cunless shown to be necessary to promote a\ncompelling governmental interest,\xe2\x80\x9d and that no such showing had been made.\nIn this case California argues that \xc2\xa7 11450.03 was not enacted for the impermissible purpose of\ninhibiting migration by needy persons and that, unlike the legislation reviewed in Shapiro, it does not\npenalize the right to travel because new arrivals are not ineligible for benefits during their first year\nof residence. California submits that, instead of being subjected to the strictest scrutiny, the statute\nshould be upheld if it is supported by a rational basis and that the State\xe2\x80\x99s legitimate interest in saving\nover $10 million a year satisfies that test. Although the United States did not elect to participate in\nthe proceedings in the District Court or the Court of Appeals, it has participated as amicus curiae\nin this Court. It has advanced the novel argument that the enactment of PRWORA allows the States\nto adopt a \xe2\x80\x9cspecialized choice-of-law-type provision\xe2\x80\x9d that \xe2\x80\x9cshould be subject to an intermediate level\nof constitutional review,\xe2\x80\x9d merely requiring that durational residency requirements be \xe2\x80\x9csubstantially\nrelated to an important governmental objective.\xe2\x80\x9d The debate about the appropriate standard of review,\ntogether with the potential relevance of the federal statute, persuades us that it will be useful to focus\non the source of the constitutional right on which respondents rely.\n\nIV\nThe \xe2\x80\x9cright to travel\xe2\x80\x9d discussed in our cases embraces at least three different components. It protects\nthe right of a citizen of one State to enter and to leave another State, the right to be treated as a\nwelcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for\nthose travelers who elect to become permanent residents, the right to be treated like other citizens\nof that State.\n\n428 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cIt was the right to go from one place to another, including the right to cross state borders while en\nroute, that was vindicated in Edwards v. California (1941), which invalidated a state law that impeded\nthe free interstate passage of the indigent. We reaffirmed that right in United States v. Guest (1966),\nwhich afforded protection to the \xe2\x80\x9c \xe2\x80\x98right to travel freely to and from the State of Georgia and to use\nhighway facilities and other instrumentalities of interstate commerce within the State of Georgia.\xe2\x80\x99 \xe2\x80\x9d\nGiven that \xc2\xa7 11450.03 imposed no obstacle to respondents\xe2\x80\x99 entry into California, we think the State\nis correct when it argues that the statute does not directly impair the exercise of the right to free\ninterstate movement. For the purposes of this case, therefore, we need not identify the source of that\nparticular right in the text of the Constitution. The right of \xe2\x80\x9cfree ingress and regress to and from\xe2\x80\x9d\nneighboring States, which was expressly mentioned in the text of the Articles of Confederation, may\nsimply have been \xe2\x80\x9cconceived from the beginning to be a necessary concomitant of the stronger Union\nthe Constitution created.\xe2\x80\x9d\nThe second component of the right to travel is, however, expressly protected by the text of the\nConstitution. The first sentence of Article IV, \xc2\xa7 2, provides:\n\xe2\x80\x9cThe Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the\nseveral States.\xe2\x80\x9d\nThus, by virtue of a person\xe2\x80\x99s state citizenship, a citizen of one State who travels in other States,\nintending to return home at the end of his journey, is entitled to enjoy the \xe2\x80\x9cPrivileges and Immunities\nof Citizens in the several States\xe2\x80\x9d that he visits. This provision removes \xe2\x80\x9cfrom the citizens of each State\nthe disabilities of alienage in the other States.\xe2\x80\x9d Paul v. Virginia (1869). * * * * It provides important\nprotections for nonresidents who enter a State whether to obtain employment, to procure medical\nservices, or even to engage in commercial shrimp fishing. Those protections are not \xe2\x80\x9cabsolute,\xe2\x80\x9d but\nthe Clause \xe2\x80\x9cdoes bar discrimination against citizens of other States where there is no substantial\nreason for the discrimination beyond the mere fact that they are citizens of other States.\xe2\x80\x9d There may\nbe a substantial reason for requiring the nonresident to pay more than the resident for a hunting\nlicense, or to enroll in the state university, but our cases have not identified any acceptable reason for\nqualifying the protection afforded by the Clause for \xe2\x80\x9cthe \xe2\x80\x98citizen of State A who ventures into State B\xe2\x80\x99\nto settle there and establish a home.\xe2\x80\x9d Permissible justifications for discrimination between residents\nand nonresidents are simply inapplicable to a nonresident\xe2\x80\x99s exercise of the right to move into another\nState and become a resident of that State.\nWhat is at issue in this case, then, is this third aspect of the right to travel\xe2\x80\x93the right of the newly\narrived citizen to the same privileges and immunities enjoyed by other citizens of the same State. That\nright is protected not only by the new arrival\xe2\x80\x99s status as a state citizen, but also by her status as a\ncitizen of the United States. That additional source of protection is plainly identified in the opening\nwords of the Fourteenth Amendment:\n\xe2\x80\x9cAll persons born or naturalized in the United States, and subject to the jurisdiction thereof,\nare citizens of the United States and of the State wherein they reside. No State shall make\nor enforce any law which shall abridge the privileges or immunities of citizens of the United\nStates; \xe2\x80\xa6.\xe2\x80\x9d\n\nCHAPTER SEVEN: The Privileges Or Immunities Clause | 429\n\n\x0cDespite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause\nof the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the\nSlaughter-House Cases (1873), it has always been common ground that this Clause protects the third\ncomponent of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller\nexplained that one of the privileges conferred by this Clause \xe2\x80\x9cis that a citizen of the United States can,\nof his own volition, become a citizen of any State of the Union by a bona fide residence therein, with\nthe same rights as other citizens of that State.\xe2\x80\x9d * * * *\nThat newly arrived citizens \xe2\x80\x9chave two political capacities, one state and one federal,\xe2\x80\x9d adds special\nforce to their claim that they have the same rights as others who share their citizenship. Neither mere\nrationality nor some intermediate standard of review should be used to judge the constitutionality of\na state rule that discriminates against some of its citizens because they have been domiciled in the\nState for less than a year. The appropriate standard may be more categorical than that articulated in\nShapiro, but it is surely no less strict.\n\nV\nBecause this case involves discrimination against citizens who have completed their interstate travel,\nthe State\xe2\x80\x99s argument that its welfare scheme affects the right to travel only \xe2\x80\x9cincidentally\xe2\x80\x9d is beside the\npoint. * * * *\nIt is undisputed that respondents and the members of the class that they represent are citizens of\nCalifornia and that their need for welfare benefits is unrelated to the length of time that they have\nresided in California. We thus have no occasion to consider what weight might be given to a citizen\xe2\x80\x99s\nlength of residence if the bona fides of her claim to state citizenship were questioned. Moreover,\nbecause whatever benefits they receive will be consumed while they remain in California, there is no\ndanger that recognition of their claim will encourage citizens of other States to establish residency\nfor just long enough to acquire some readily portable benefit, such as a divorce or a college education,\nthat will be enjoyed after they return to their original domicile.\nThe classifications challenged in this case\xe2\x80\x93and there are many\xe2\x80\x93are defined entirely by (a) the period\nof residency in California and (b) the location of the prior residences of the disfavored class members.\n****\nThese classifications may not be justified by a purpose to deter welfare applicants from migrating\nto California for three reasons. First, although it is reasonable to assume that some persons may be\nmotivated to move for the purpose of obtaining higher benefits, the empirical evidence reviewed by\nthe District Judge, which takes into account the high cost of living in California, indicates that the\nnumber of such persons is quite small\xe2\x80\x93surely not large enough to justify a burden on those who had\nno such motive. Second, California has represented to the Court that the legislation was not enacted\nfor any such reason. Third, even if it were, as we squarely held in Shapiro v. Thompson (1969), such a\npurpose would be unequivocally impermissible.\nDisavowing any desire to fence out the indigent, California has instead advanced an entirely fiscal\n430 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cjustification for its multitiered scheme. The enforcement of \xc2\xa7 11450.03 will save the State\napproximately $10.9 million a year. The question is not whether such saving is a legitimate purpose\nbut whether the State may accomplish that end by the discriminatory means it has chosen. An\nevenhanded, across-the-board reduction of about 72 cents per month for every beneficiary would\nproduce the same result. But our negative answer to the question does not rest on the weakness of the\nState\xe2\x80\x99s purported fiscal justification. It rests on the fact that the Citizenship Clause of the Fourteenth\nAmendment expressly equates citizenship with residence: \xe2\x80\x9cThat Clause does not provide for, and does\nnot allow for, degrees of citizenship based on length of residence.\xe2\x80\x9d It is equally clear that the Clause\ndoes not tolerate a hierarchy of 45 subclasses of similarly situated citizens based on the location\nof their prior residence. Thus \xc2\xa7 11450.03 is doubly vulnerable: Neither the duration of respondents\xe2\x80\x99\nCalifornia residence, nor the identity of their prior States of residence, has any relevance to their need\nfor benefits. Nor do those factors bear any relationship to the State\xe2\x80\x99s interest in making an equitable\nallocation of the funds to be distributed among its needy citizens. * * * *\n\nVI\nThe question that remains is whether congressional approval of durational residency requirements\nin the 1996 amendment to the Social Security Act somehow resuscitates the constitutionality of\n\xc2\xa7 11450.03. That question is readily answered, for we have consistently held that Congress may not\nauthorize the States to violate the Fourteenth Amendment. * * * *\n***\nCitizens of the United States, whether rich or poor, have the right to choose to be citizens \xe2\x80\x9cof the\nState wherein they reside.\xe2\x80\x9d U.S. Const., Amdt. 14, \xc2\xa7 1. The States, however, do not have any right to\nselect their citizens. The Fourteenth Amendment, like the Constitution itself, was, as Justice Cardozo\nput it, \xe2\x80\x9cframed upon the theory that the peoples of the several states must sink or swim together, and\nthat in the long run prosperity and salvation are in union and not division.\xe2\x80\x9d\nThe judgment of the Court of Appeals is affirmed.\nIt is so ordered.\nCHIEF JUSTICE REHNQUIST, WITH WHOM JUSTICE THOMAS JOINS, DISSENTING.\nThe Court today breathes new life into the previously dormant Privileges or Immunities Clause of\nthe Fourteenth Amendment\xe2\x80\x94a Clause relied upon by this Court in only one other decision, Colgate\nv. Harvey (1935), overruled five years later by Madden v. Kentucky (1940). It uses this Clause to\nstrike down what I believe is a reasonable measure falling under the head of a \xe2\x80\x9cgood-faith residency\nrequirement.\xe2\x80\x9d Because I do not think any provision of the Constitution\xe2\x80\x94and surely not a provision\nrelied upon for only the second time since its enactment 130 years ago\xe2\x80\x94requires this result, I dissent.\nMuch of the Court\xe2\x80\x99s opinion is unremarkable and sound. The right to travel clearly embraces the\nright to go from one place to another, and prohibits States from impeding the free interstate passage\nCHAPTER SEVEN: The Privileges Or Immunities Clause | 431\n\n\x0cof citizens. * * * * Indeed, for most of this country\xe2\x80\x99s history, what the Court today calls the first\n\xe2\x80\x9ccomponent\xe2\x80\x9d of the right to travel was the entirety of this right. * * * * {T}he traditional conception of\nthe right to travel is simply not an issue in this case.\nI also have no difficulty with aligning the right to travel with the protections afforded by the Privileges\nand Immunities Clause of Article IV, \xc2\xa7 2, to nonresidents who enter other States \xe2\x80\x9cintending to return\nhome at the end of [their] journey.\xe2\x80\x9d Nonresident visitors of other States should not be subject to\ndiscrimination solely because they live out of State. Like the traditional right-to-travel guarantees\ndiscussed above, however, this Clause has no application here, because respondents expressed a\ndesire to stay in California and become citizens of that State. * * * *\nFinally, I agree with the proposition that a \xe2\x80\x9ccitizen of the United States can, of his own volition,\nbecome a citizen of any State of the Union by a bona fide residence therein, with the same rights as\nother citizens of that State.\xe2\x80\x9d Slaughter-House Cases (1873).\nBut I cannot see how the right to become a citizen of another State is a necessary \xe2\x80\x9ccomponent\xe2\x80\x9d of\nthe right to travel, or why the Court tries to marry these separate and distinct rights. A person is no\nlonger \xe2\x80\x9ctraveling\xe2\x80\x9d in any sense of the word when he finishes his journey to a State which he plans\nto make his home. Indeed, under the Court\xe2\x80\x99s logic, the protections of the Privileges or Immunities\nClause recognized in this case come into play only when an individual stops traveling with the intent\nto remain and become a citizen of a new State. The right to travel and the right to become a citizen\nare distinct, their relationship is not reciprocal, and one is not a \xe2\x80\x9ccomponent\xe2\x80\x9d of the other. Indeed, the\nsame dicta from the Slaughter-House Cases quoted by the Court actually treats the right to become\na citizen and the right to travel as separate and distinct rights under the Privileges or Immunities\nClause of the Fourteenth Amendment. At most, restrictions on an individual\xe2\x80\x99s right to become a citizen\nindirectly affect his calculus in deciding whether to exercise his right to travel in the first place, but\nsuch an attenuated and uncertain relationship is no ground for folding one right into the other. * * * *\nThe Court tries to distinguish education and divorce benefits by contending that the welfare payment\nhere will be consumed in California, while a college education or a divorce produces benefits that\nare \xe2\x80\x9cportable\xe2\x80\x9d and can be enjoyed after individuals return to their original domicile. But this \xe2\x80\x9cyou\ncan\xe2\x80\x99t take it with you\xe2\x80\x9d distinction is more apparent than real, and offers little guidance to lower\ncourts who must apply this rationale in the future. Welfare payments are a form of insurance, giving\nimpoverished individuals and their families the means to meet the demands of daily life while they\nreceive the necessary training, education, and time to look for a job. The cash itself will no doubt\nbe spent in California, but the benefits from receiving this income and having the opportunity to\nbecome employed or employable will stick with the welfare recipient if they stay in California or\ngo back to their true domicile. Similarly, tuition subsidies are \xe2\x80\x9cconsumed\xe2\x80\x9d in-state but the recipient\ntakes the benefits of a college education with him wherever he goes. A welfare subsidy is thus as\nmuch an investment in human capital as is a tuition subsidy, and their attendant benefits are just as\n\xe2\x80\x9cportable.\xe2\x80\x9d More importantly, this foray into social economics demonstrates that the line drawn by\nthe Court borders on the metaphysical, and requires lower courts to plumb the policies animating\ncertain benefits like welfare to define their \xe2\x80\x9cessence\xe2\x80\x9d and hence their \xe2\x80\x9cportability.\xe2\x80\x9d As this Court wisely\nrecognized almost 30 years ago, \xe2\x80\x9cthe intractable economic, social, and even philosophical problems\n\n432 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cpresented by public welfare assistance programs are not the business of this Court.\xe2\x80\x9d Dandridge v.\nWilliams (1970). * * * *\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=40#h5p-32\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=40#h5p-33\n\nNotes\n1. Be prepared to discuss the right to travel as both a privileges or immunities clause issue and equal\nprotection clause issue under the Fourteenth Amendment.\n2. Be prepared to discuss the issue of portable and non-portable benefits.\n3. Does the Fourteenth Amendment\xe2\x80\x99s protection for the right to travel include rights for a person who\nrelocates from Long Island City, Queens, New York (LIC) to Buffalo in Erie County, New York, about\n400 miles? What about between LIC and Erie, Pennsylvania, about 436 miles? What about between\nLIC and Fort Lee, New Jersey, about 12 miles?\n\nThe Slaughter-House Cases\n83 U.S. (16 Wall.) 36 (1873)\nMR. JUSTICE MILLER DELIVERED THE OPINION OF THE COURT.\nThese cases are brought here by writs of error to the Supreme Court of the State of Louisiana. They\nCHAPTER SEVEN: The Privileges Or Immunities Clause | 433\n\n\x0carise out of the efforts of the butchers of New Orleans to resist the Crescent City Live-Stock Landing\nand Slaughter-House Company in the exercise of certain powers conferred by the charter which\ncreated it, and which was granted by the legislature of that State.\nThe cases * * * * were all decided by the Supreme Court of Louisiana in favor of the Slaughter-House\nCompany, as we shall hereafter call it for the sake of brevity, and these writs are brought to reverse\nthose decisions. * * * *\nThe statute thus assailed as unconstitutional was passed March 8th, 1869, and is entitled \xe2\x80\x98An act to\nprotect the health of the city of New Orleans, to locate the stock-landings and slaughter-houses, and\nto incorporate the Crescent City Live-Stock Landing and Slaughter-House Company.\xe2\x80\x99\nThe first section forbids the landing or slaughtering of animals whose flesh is intended for food, within\nthe city of New Orleans and other parishes and boundaries named and defined, or the keeping or\nestablishing any slaughter-houses or abattoirs within those limits except by the corporation thereby\ncreated, which is also limited to certain places afterwards mentioned. Suitable penalties are enacted\nfor violations of this prohibition.\nThe second section designates the corporators, gives the name to the corporation, and confers on it\nthe usual corporate powers.\nThe third and fourth sections authorize the company to establish and erect within certain territorial\nlimits, therein defined, one or more stock-yards, stock-landings, and slaughter-houses, and imposes\nupon it the duty of erecting, on or before the first day of June, 1869, one grand slaughter-house of\nsufficient capacity for slaughtering five hundred animals per day.\nIt declares that the company, after it shall have prepared all the necessary buildings, yards, and other\nconveniences for that purpose, shall have the sole and exclusive privilege of conducting and carrying\non the live-stock landing and slaughter-house business within the limits and privilege granted by the\nact, and that all such animals shall be landed at the stock-landings and slaughtered at the slaughterhouses of the company, and nowhere else. Penalties are enacted for infractions of this provision, and\nprices fixed for the maximum charges of the company for each steamboat and for each animal landed.\nSection five orders the closing up of all other stock-landings and slaughter-houses after the first day\nof June, in the parishes of Orleans, Jefferson, and St. Bernard, and makes it the duty of the company\nto permit any person to slaughter animals in their slaughter-houses under a heavy penalty for each\nrefusal. Another section fixes a limit to the charges to be made by the company for each animal so\nslaughtered in their building, and another provides for an inspection of all animals intended to be so\nslaughtered, by an officer appointed by the governor of the State for that purpose.\nThese are the principal features of the statute, and are all that have any bearing upon the questions to\nbe decided by us.\nThis statute is denounced not only as creating a monopoly and conferring odious and exclusive\nprivileges upon a small number of persons at the expense of the great body of the community of New\nOrleans, but it is asserted that it deprives a large and meritorious class of citizens-the whole of the\n434 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cbutchers of the city-of the right to exercise their trade, the business to which they have been trained\nand on which they depend for the support of themselves and their families, and that the unrestricted\nexercise of the business of butchering is necessary to the daily subsistence of the population of the\ncity. * * * *\nThe plaintiffs in error * * * * allege that the statute is a violation of the Constitution of the United\nStates in these several particulars:\nThat it creates an involuntary servitude forbidden by the thirteenth article of amendment; That it\nabridges the privileges and immunities of citizens of the United States; That it denies to the plaintiffs\nthe equal protection of the laws; and, That it deprives them of their property without due process of\nlaw; contrary to the provisions of the first section of the fourteenth article of amendment. This court\nis thus called upon for the first time to give construction to these articles.\nWe do not conceal from ourselves the great responsibility which this duty devolves upon us. No\nquestions so far-reaching and pervading in their consequences, so profoundly interesting to the\npeople of this country, and so important in their bearing upon the relations of the United States, and\nof the several States to each other and to the citizens of the States and of the United States, have\nbeen before this court during the official life of any of its present members. We have given every\nopportunity for a full hearing at the bar; we have discussed it freely and compared views among\nourselves; we have taken ample time for careful deliberation, and we now propose to announce the\njudgments which we have formed in the construction of those articles, so far as we have found them\nnecessary to the decision of the cases before us, and beyond that we have neither the inclination nor\nthe right to go. * * * *\n{The Court held that the Thirteenth Amendment did not apply}\nThe first section of the fourteenth article, to which our attention is more specially invited, opens with\na definition of citizenship-not only citizenship of the United States, but citizenship of the States. No\nsuch definition was previously found in the Constitution, nor had any attempt been made to define\nit by act of Congress. It had been the occasion of much discussion in the courts, by the executive\ndepartments, and in the public journals. It had been said by eminent judges that no man was a citizen\nof the United States, except as he was a citizen of one of the States composing the Union. Those,\ntherefore, who had been born and resided always in the District of Columbia or in the Territories,\nthough within the United States, were not citizens. Whether this proposition was sound or not had\nnever been judicially decided. But it had been held by this court, in the celebrated Dred Scott case, only\na few years before the outbreak of the civil war, that a man of African descent, whether a slave or not,\nwas not and could not be a citizen of a State or of the United States. This decision, while it met the\ncondemnation of some of the ablest statesmen and constitutional lawyers of the country, had never\nbeen overruled; and if it was to be accepted as a constitutional limitation of the right of citizenship,\nthen all the negro race who had recently been made freemen, were still, not only not citizens, but\nwere incapable of becoming so by anything short of an amendment to the Constitution.\nTo remove this difficulty primarily, and to establish a clear and comprehensive definition of\n\nCHAPTER SEVEN: The Privileges Or Immunities Clause | 435\n\n\x0ccitizenship which should declare what should constitute citizenship of the United States, and also\ncitizenship of a State, the first clause of the first section was framed.\n\xe2\x80\x98All persons born or naturalized in the United States, and subject to the jurisdiction thereof,\nare citizens of the United States and of the State wherein they reside.\xe2\x80\x99\nThe first observation we have to make on this clause is, that it puts at rest both the questions which\nwe stated to have been the subject of differences of opinion. It declares that persons may be citizens\nof the United States without regard to their citizenship of a particular State, and it overturns the\nDred Scott decision by making all persons born within the United States and subject to its jurisdiction\ncitizens of the United States. That its main purpose was to establish the citizenship of the negro can\nadmit of no doubt. The phrase, \xe2\x80\x98subject to its jurisdiction\xe2\x80\x99 was intended to exclude from its operation\nchildren of ministers, consuls, and citizens or subjects of foreign States born within the United States.\nThe next observation is more important in view of the arguments of counsel in the present case. It\nis, that the distinction between citizenship of the United States and citizenship of a State is clearly\nrecognized and established. Not only may a man be a citizen of the United States without being a\ncitizen of a State, but an important element is necessary to convert the former into the latter. He must\nreside within the State to make him a citizen of it, but it is only necessary that he should be born or\nnaturalized in the United States to be a citizen of the Union.\nIt is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which\nare distinct from each other, and which depend upon different characteristics or circumstances in the\nindividual.\nWe think this distinction and its explicit recognition in this amendment of great weight in this\nargument, because the next paragraph of this same section, which is the one mainly relied on by the\nplaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does\nnot speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs\nrests wholly on the assumption that the citizenship is the same, and the privileges and immunities\nguaranteed by the clause are the same.\nThe language is, \xe2\x80\x98No State shall make or enforce any law which shall abridge the privileges or\nimmunities of citizens of the United States.\xe2\x80\x99 It is a little remarkable, if this clause was intended as a\nprotection to the citizen of a State against the legislative power of his own State, that the word citizen\nof the State should be left out when it is so carefully used, and used in contradistinction to citizens of\nthe United States, in the very sentence which precedes it. It is too clear for argument that the change\nin phraseology was adopted understandingly and with a purpose.\nOf the privileges and immunities of the citizen of the United States, and of the privileges and\nimmunities of the citizen of the State, and what they respectively are, we will presently consider; but\nwe wish to state here that it is only the former which are placed by this clause under the protection\nof the Federal Constitution, and that the latter, whatever they may be, are not intended to have any\nadditional protection by this paragraph of the amendment. If, then, there is a difference between the\nprivileges and immunities belonging to a citizen of the United States as such, and those belonging to\n436 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cthe citizen of the State as such the latter must rest for their security and protection where they have\nheretofore rested; for they are not embraced by this paragraph of the amendment.\nThe first occurrence of the words \xe2\x80\x98privileges and immunities\xe2\x80\x99 in our constitutional history, is to be\nfound in the fourth of the articles of the old Confederation. It declares \xe2\x80\x98that the better to secure\nand perpetuate mutual friendship and intercourse among the people of the different States in this\nUnion, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice\nexcepted, shall be entitled to all the privileges and immunities of free citizens in the several States;\nand the people of each State shall have free ingress and regress to and from any other State, and shall\nenjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and\nrestrictions as the inhabitants thereof respectively.\xe2\x80\x99\nIn the Constitution of the United States, which superseded the Articles of Confederation, the\ncorresponding provision is found in section two of the fourth article, in the following words: \xe2\x80\x9cThe\ncitizens of each State shall be entitled to all the privileges and immunities of citizens of the several\nStates.\xe2\x80\x9d\nThere can be but little question that the purpose of both these provisions is the same, and that the\nprivileges and immunities intended are the same in each. In the article of the Confederation we have\nsome of these specifically mentioned, and enough perhaps to give some general idea of the class of\ncivil rights meant by the phrase.\nFortunately we are not without judicial construction of this clause of the Constitution. The first and\nthe leading case on the subject is that of Corfield v. Coryell, decided by Mr. Justice Washington in\nthe Circuit Court for the District of Pennsylvania in 1823. \xe2\x80\x98The inquiry,\xe2\x80\x99 he says, \xe2\x80\x98is, what are the\nprivileges and immunities of citizens of the several States? We feel no hesitation in confining these\nexpressions to those privileges and immunities which are fundamental; which belong of right to the\ncitizens of all free governments, and which have at all times been enjoyed by citizens of the several\nStates which compose this Union, from the time of their becoming free, independent, and sovereign.\nWhat these fundamental principles are, it would be more tedious than difficult to enumerate. They\nmay all, however, be comprehended under the following general heads: protection by the government,\nwith the right to acquire and possess property of every kind, and to pursue and obtain happiness and\nsafety, subject, nevertheless, to such restraints as the government may prescribe for the general good\nof the whole.\xe2\x80\x99\nThis definition of the privileges and immunities of citizens of the States is adopted in the main by this\ncourt in the recent case of Ward v. The State of Maryland [1870], while it declines to undertake an\nauthoritative definition beyond what was necessary to that decision. The description, when taken to\ninclude others not named, but which are of the same general character, embraces nearly every civil\nright for the establishment and protection of which organized government is instituted. They are, in\nthe language of Judge Washington, those rights which the fundamental. Throughout his opinion, they\nare spoken of as rights belonging to the individual as a citizen of a State. They are so spoken of in the\nconstitutional provision which he was construing. And they have always been held to be the class of\nrights which the State governments were created to establish and secure.\n\nCHAPTER SEVEN: The Privileges Or Immunities Clause | 437\n\n\x0cIn the case of Paul v. Virginia (1869), the court, in expounding this clause of the Constitution, says that\n\xe2\x80\x98the privileges and immunities secured to citizens of each State in the several States, by the provision\nin question, are those privileges and immunities which are common to the citizens in the latter States\nunder their constitution and laws by virtue of their being citizens.\xe2\x80\x99\nThe constitutional provision there alluded to did not create those rights, which it called privileges and\nimmunities of citizens of the States. It threw around them in that clause no security for the citizen of\nthe State in which they were claimed or exercised. Nor did it profess to control the power of the State\ngovernments over the rights of its own citizens.\nIts sole purpose was to declare to the several States, that whatever those rights, as you grant or\nestablish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise,\nthe same, neither more nor less, shall be the measure of the rights of citizens of other States within\nyour jurisdiction.\nIt would be the vainest show of learning to attempt to prove by citations of authority, that up to the\nadoption of the recent amendments, no claim or pretence was set up that those rights depended on\nthe Federal government for their existence or protection, beyond the very few express limitations\nwhich the Federal Constitution imposed upon the States-such, for instance, as the prohibition against\nex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But with the\nexception of these and a few other restrictions, the entire domain of the privileges and immunities\nof citizens of the States, as above defined, lay within the constitutional and legislative power of the\nStates, and without that of the Federal government. Was it the purpose of the fourteenth amendment,\nby the simple declaration that no State should make or enforce any law which shall abridge the\nprivileges and immunities of citizens of the United States, to transfer the security and protection of\nall the civil rights which we have mentioned, from the States to the Federal government? And where it\nis declared that Congress shall have the power to enforce that article, was it intended to bring within\nthe power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?\nAll this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are\nthese rights subject to the control of Congress whenever in its discretion any of them are supposed to\nbe abridged by State legislation, but that body may also pass laws in advance, limiting and restricting\nthe exercise of legislative power by the States, in their most ordinary and usual functions, as in its\njudgment it may think proper on all such subjects. And still further, such a construction followed by\nthe reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this\ncourt a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with\nauthority to nullify such as it did not approve as consistent with those rights, as they existed at the\ntime of the adoption of this amendment. The argument we admit is not always the most conclusive\nwhich is drawn from the consequences urged against the adoption of a particular construction of an\ninstrument. But when, as in the case before us, these consequences are so serious, so far-reaching\nand pervading, so great a departure from the structure and spirit of our institutions; when the effect\nis to fetter and degrade the State governments by subjecting them to the control of Congress, in the\nexercise of powers heretofore universally conceded to them of the most ordinary and fundamental\ncharacter; when in fact it radically changes the whole theory of the relations of the State and Federal\ngovernments to each other and of both these governments to the people; the argument has a force\n438 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cthat is irresistible, in the absence of language which expresses such a purpose too clearly to admit of\ndoubt.\nWe are convinced that no such results were intended by the Congress which proposed these\namendments, nor by the legislatures of the States which ratified them.\nHaving shown that the privileges and immunities relied on in the argument are those which belong\nto citizens of the States as such, and that they are left to the State governments for security and\nprotection, and not by this article placed under the special care of the Federal government, we may\nhold ourselves excused from defining the privileges and immunities of citizens of the United States\nwhich no State can abridge, until some case involving those privileges may make it necessary to do so.\nBut lest it should be said that no such privileges and immunities are to be found if those we have\nbeen considering are excluded, we venture to suggest some which own their existence to the Federal\ngovernment, its National character, its Constitution, or its laws.\nOne of these is well described in the case of Crandall v. Nevada (1868). It is said to be the right of the\ncitizen of this great country, protected by implied guarantees of its Constitution, \xe2\x80\x98to come to the seat\nof government to assert any claim he may have upon that government, to transact any business he\nmay have with it, to seek its protection, to share its offices, to engage in administering its functions.\nHe has the right of free access to its seaports, through which all operations of foreign commerce are\nconducted, to the subtreasuries, land offices, and courts of justice in the several States.\xe2\x80\x99 And quoting\nfrom the language of Chief Justice Taney in another case, it is said \xe2\x80\x98that for all the great purposes for\nwhich the Federal government was established, we are one people, with one common country, we are\nall citizens of the United States;\xe2\x80\x99 and it is, as such citizens, that their rights are supported in this court\nin Crandall v. Nevada.\nAnother privilege of a citizen of the United States is to demand the care and protection of the Federal\ngovernment over his life, liberty, and property when on the high seas or within the jurisdiction of a\nforeign government. Of this there can be no doubt, nor that the right depends upon his character as\na citizen of the United States. The right to peaceably assemble and petition for redress of grievances,\nthe privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal\nConstitution. The right to use the navigable waters of the United States, however they may penetrate\nthe territory of the several States, all rights secured to our citizens by treaties with foreign nations,\nare dependent upon citizenship of the United States, and not citizenship of a State. One of these\nprivileges is conferred by the very article under consideration. It is that a citizen of the United States\ncan, of his own volition, become a citizen of any State of the Union by a bona fide residence therein,\nwith the same rights as other citizens of that State. To these may be added the rights secured by the\nthirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth, next to be\nconsidered.\nBut it is useless to pursue this branch of the inquiry, since we are of opinion that the rights claimed by\nthese plaintiffs in error, if they have any existence, are not privileges and immunities of citizens of the\nUnited States within the meaning of the clause of the fourteenth amendment under consideration.\n****\nCHAPTER SEVEN: The Privileges Or Immunities Clause | 439\n\n\x0c{Additionally} The argument has not been much pressed in these cases that the defendant\xe2\x80\x99s charter\ndeprives the plaintiffs of their property without due process of law, or that it denies to them the equal\nprotection of the law. The first of these paragraphs has been in the Constitution since the adoption\nof the fifth amendment, as a restraint upon the Federal power. It is also to be found in some form of\nexpression in the constitutions of nearly all the States, as a restraint upon the power of the States. This\nlaw then, has practically been the same as it now is during the existence of the government, except so\nfar as the present amendment may place the restraining power over the States in this matter in the\nhands of the Federal government.\nWe are not without judicial interpretation, therefore, both State and National, of the meaning of this\nclause. And it is sufficient to say that under no construction of that provision that we have ever seen,\nor any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise\nof their trade by the butchers of New Orleans be held to be a deprivation of property within the\nmeaning of that provision. * * * *\nBut whatever fluctuations may be seen in the history of public opinion on this subject during the\nperiod of our national existence, we think it will be found that this court, so far as its functions\nrequired, has always held with a steady and an even hand the balance between State and Federal\npower, and we trust that such may continue to be the history of its relation to that subject so long as\nit shall have duties to perform which demand of it a construction of the Constitution, or of any of its\nparts. The judgments of the Supreme Court of Louisiana in these cases are\nAFFIRMED.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=40#h5p-31\n\n440 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cCHAPTER EIGHT: Incorporation and\nFundamental Rights\nMcDonald v. City of Chicago\n561 U.S. 742 (2010)\nALITO, J., ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED THE OPINION OF THE COURT WITH RESPECT TO\nPARTS I, II\xe2\x80\x93A, II\xe2\x80\x93B, II\xe2\x80\x93D, III\xe2\x80\x93A, AND III\xe2\x80\x93B, IN WHICH ROBERTS, C. J., AND SCALIA, KENNEDY, AND THOMAS, JJ., JOINED,\nAND AN OPINION WITH RESPECT TO PARTS II\xe2\x80\x93C, IV, AND V, IN WHICH ROBERTS, C. J., AND SCALIA AND KENNEDY, JJ.,\nJOIN. SCALIA, J., FILED A CONCURRING OPINION. THOMAS, J., FILED AN OPINION CONCURRING IN PART AND\nCONCURRING IN THE JUDGMENT. STEVENS, J., FILED A DISSENTING OPINION. BREYER, J., FILED A DISSENTING OPINION, IN\nWHICH GINSBURG AND SOTOMAYOR, JJ., JOINED.\nJUSTICE ALITO ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED THE OPINION OF THE COURT WITH RESPECT\nTO PARTS I, II\xe2\x80\x93A, II\xe2\x80\x93B, II\xe2\x80\x93D, III\xe2\x80\x93A, AND III\xe2\x80\x93B, IN WHICH THE CHIEF JUSTICE, JUSTICE SCALIA, JUSTICE KENNEDY, AND\nJUSTICE THOMAS JOIN, AND AN OPINION WITH RESPECT TO PARTS II\xe2\x80\x93C, IV, AND V, IN WHICH THE CHIEF JUSTICE,\nJUSTICE SCALIA, AND JUSTICE KENNEDY JOIN.\nTwo years ago, in District of Columbia v. Heller (2008), we held that the Second Amendment protects\nthe right to keep and bear arms for the purpose of self-defense, and we struck down a District of\nColumbia law that banned the possession of handguns in the home. The city of Chicago (City) and\nthe village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia\xe2\x80\x99s, but\nChicago and Oak Park argue that their laws are constitutional because the Second Amendment has\nno application to the States. We have previously held that most of the provisions of the Bill of Rights\napply with full force to both the Federal Government and the States. Applying the standard that is\nwell established in our case law, we hold that the Second Amendment right is fully applicable to the\nStates.\n\nI\nOtis McDonald, Adam Orlov, Colleen Lawson, and David Lawson (Chicago petitioners) are Chicago\nresidents who would like to keep handguns in their homes for self-defense but are prohibited from\ndoing so by Chicago\xe2\x80\x99s firearms laws. A City ordinance provides that \xe2\x80\x9c[n]o person shall \xe2\x80\xa6 possess \xe2\x80\xa6\nany firearm unless such person is the holder of a valid registration certificate for such firearm.\xe2\x80\x9d The\nCode then prohibits registration of most handguns, thus effectively banning handgun possession by\nalmost all private citizens who reside in the City. Like Chicago, Oak Park makes it \xe2\x80\x9cunlawful for any\nperson to possess \xe2\x80\xa6 any firearm,\xe2\x80\x9d a term that includes \xe2\x80\x9cpistols, revolvers, guns and small arms \xe2\x80\xa6\ncommonly known as handguns.\xe2\x80\x9d * * * *\n\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 441\n\n\x0cAfter our decision in Heller, the Chicago petitioners and two groups filed suit against the City in the\nUnited States District Court for the Northern District of Illinois. They sought a declaration that the\nhandgun ban and several related Chicago ordinances violate the Second and Fourteenth\nAmendments to the United States Constitution. Another action challenging the Oak Park law was\nfiled in the same District Court by the National Rifle Association (NRA) and two Oak Park residents.\nIn addition, the NRA and others filed a third action challenging the Chicago ordinances. All three\ncases were assigned to the same District Judge.\nThe District Court rejected plaintiffs\xe2\x80\x99 argument that the Chicago and Oak Park laws are\nunconstitutional. The court noted that the Seventh Circuit had \xe2\x80\x9csquarely upheld the constitutionality\nof a ban on handguns a quarter century ago,\xe2\x80\x9d and that Heller had explicitly refrained from \xe2\x80\x9copin[ing]\non the subject of incorporation vel non of the Second Amendment.\xe2\x80\x9d The court observed that a district\njudge has a \xe2\x80\x9cduty to follow established precedent in the Court of Appeals to which he or she is\nbeholden, even though the logic of more recent caselaw may point in a different direction.\xe2\x80\x9d\nThe Seventh Circuit affirmed, relying on three 19th-century cases\xe2\x80\x94United States v. Cruikshank\n(1876), Presser v. Illinois (1886), and Miller v. Texas (1894)\xe2\x80\x94that were decided in the wake of this\nCourt\xe2\x80\x99s interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment in the\nSlaughter-House Cases (1873). The Seventh Circuit described the rationale of those cases as \xe2\x80\x9cdefunct\xe2\x80\x9d\nand recognized that they did not consider the question whether the Fourteenth Amendment\xe2\x80\x99s Due\nProcess Clause incorporates the Second Amendment right to keep and bear arms. Nevertheless, the\nSeventh Circuit observed that it was obligated to follow Supreme Court precedents that have \xe2\x80\x9cdirect\napplication,\xe2\x80\x9d and it declined to predict how the Second Amendment would fare under this Court\xe2\x80\x99s\nmodern \xe2\x80\x9cselective incorporation\xe2\x80\x9d approach.\nWe granted certiorari.\n\nII\nA\nPetitioners argue that the Chicago and Oak Park laws violate the right to keep and bear arms for two\nreasons. Petitioners\xe2\x80\x99 primary submission is that this right is among the \xe2\x80\x9cprivileges or immunities of\ncitizens of the United States\xe2\x80\x9d and that the narrow interpretation of the Privileges or Immunities\nClause adopted in the Slaughter-House Cases should now be rejected. As a secondary argument,\npetitioners contend that the Fourteenth Amendment\xe2\x80\x99s Due Process Clause \xe2\x80\x9cincorporates\xe2\x80\x9d the Second\nAmendment right.\nChicago and Oak Park (municipal respondents) maintain that a right set out in the Bill of Rights\napplies to the States only if that right is an indispensable attribute of any \xe2\x80\x9c\xe2\x80\x98civilized\xe2\x80\x99\xe2\x80\x9d legal system. If it\nis possible to imagine a civilized country that does not recognize the right, the municipal\nrespondents tell us, then that right is not protected by due process. And since there are civilized\ncountries that ban or strictly regulate the private possession of handguns, the municipal respondents\n442 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cmaintain that due process does not preclude such measures. In light of the parties\xe2\x80\x99 far-reaching\narguments, we begin by recounting this Court\xe2\x80\x99s analysis over the years of the relationship between\nthe provisions of the Bill of Rights and the States.\n\nB\nThe Bill of Rights, including the Second Amendment, originally applied only to the Federal\nGovernment. In Barron ex rel. Tiernan v. Mayor of Baltimore (1833), the Court, in an opinion by Chief\nJustice Marshall, explained that this question was \xe2\x80\x9cof great importance\xe2\x80\x9d but \xe2\x80\x9cnot of much difficulty.\xe2\x80\x9d\nIn less than four pages, the Court firmly rejected the proposition that the first eight Amendments\noperate as limitations on the States, holding that they apply only to the Federal Government.\nThe constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our\ncountry\xe2\x80\x99s federal system. The provision at issue in this case, \xc2\xa7 1 of the Fourteenth Amendment,\nprovides, among other things, that a State may not abridge \xe2\x80\x9cthe privileges or immunities of citizens\nof the United States\xe2\x80\x9d or deprive \xe2\x80\x9cany person of life, liberty, or property, without due process of law.\xe2\x80\x9d\nFour years after the adoption of the Fourteenth Amendment, this Court was asked to interpret the\nAmendment\xe2\x80\x99s reference to \xe2\x80\x9cthe privileges or immunities of citizens of the United States.\xe2\x80\x9d The\nSlaughter-House Cases, involved challenges to a Louisiana law permitting the creation of a statesanctioned monopoly on the butchering of animals within the city of New Orleans. Justice Samuel\nMiller\xe2\x80\x99s opinion for the Court concluded that the Privileges or Immunities Clause protects only those\nrights \xe2\x80\x9cwhich owe their existence to the Federal government, its National character, its Constitution,\nor its laws.\xe2\x80\x9d The Court held that other fundamental rights\xe2\x80\x94rights that predated the creation of the\nFederal Government and that \xe2\x80\x9cthe State governments were created to establish and secure\xe2\x80\x9d\xe2\x80\x94were\nnot protected by the Clause.\nIn drawing a sharp distinction between the rights of federal and state citizenship, the Court relied on\ntwo principal arguments. First, the Court emphasized that the Fourteenth Amendment\xe2\x80\x99s Privileges or\nImmunities Clause spoke of \xe2\x80\x9cthe privileges or immunities of citizens of the United States,\xe2\x80\x9d and the\nCourt contrasted this phrasing with the wording in the first sentence of the Fourteenth Amendment\nand in the Privileges and Immunities Clause of Article IV, both of which refer to state citizenship.\n(Emphasis added.) Second, the Court stated that a contrary reading would \xe2\x80\x9cradically chang[e] the\nwhole theory of the relations of the State and Federal governments to each other and of both these\ngovernments to the people,\xe2\x80\x9d and the Court refused to conclude that such a change had been made\n\xe2\x80\x9cin the absence of language which expresses such a purpose too clearly to admit of doubt.\xe2\x80\x9d Finding\nthe phrase \xe2\x80\x9cprivileges or immunities of citizens of the United States\xe2\x80\x9d lacking by this high standard,\nthe Court reasoned that the phrase must mean something more limited.\nUnder the Court\xe2\x80\x99s narrow reading, the Privileges or Immunities Clause protects such things as the\nright\nto come to the seat of government to assert any claim [a citizen] may have upon that\ngovernment, to transact any business he may have with it, to seek its protection, to share its\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 443\n\n\x0coffices, to engage in administering its functions \xe2\x80\xa6 [and to] become a citizen of any State of the\nUnion by a bona fide residence therein, with the same rights as other citizens of that State.\nFinding no constitutional protection against state intrusion of the kind envisioned by the Louisiana\nstatute, the Court upheld the statute. Four Justices dissented. Justice Field, joined by Chief Justice\nChase and Justices Swayne and Bradley, criticized the majority for reducing the Fourteenth\nAmendment\xe2\x80\x99s Privileges or Immunities Clause to \xe2\x80\x9ca vain and idle enactment, which accomplished\nnothing, and most unnecessarily excited Congress and the people on its passage.\xe2\x80\x9d Justice Field\nopined that the Privileges or Immunities Clause protects rights that are \xe2\x80\x9cin their nature \xe2\x80\xa6\nfundamental,\xe2\x80\x9d including the right of every man to pursue his profession without the imposition of\nunequal or discriminatory restrictions. Justice Bradley\xe2\x80\x99s dissent observed that \xe2\x80\x9cwe are not bound to\nresort to implication \xe2\x80\xa6 to find an authoritative declaration of some of the most important privileges\nand immunities of citizens of the United States. It is in the Constitution itself.\xe2\x80\x9d Justice Bradley would\nhave construed the Privileges or Immunities Clause to include those rights enumerated in the\nConstitution as well as some unenumerated rights. Justice Swayne described the majority\xe2\x80\x99s narrow\nreading of the Privileges or Immunities Clause as \xe2\x80\x9cturn[ing] \xe2\x80\xa6 what was meant for bread into a\nstone.\xe2\x80\x9d (dissenting opinion).\nToday, many legal scholars dispute the correctness of the narrow Slaughter-House interpretation.\nSee, e.g., Saenz v. Roe (1999) (Thomas, J., dissenting) (scholars of the Fourteenth Amendment agree\n\xe2\x80\x9cthat the Clause does not mean what the Court said it meant in 1873\xe2\x80\x9d); Brief for Constitutional Law\nProfessors as Amici Curiae 33 (claiming an \xe2\x80\x9coverwhelming consensus among leading constitutional\nscholars\xe2\x80\x9d that the opinion is \xe2\x80\x9cegregiously wrong\xe2\x80\x9d). * * * *\n\nC\nAs previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed\npetitioners\xe2\x80\x99 claims at the Court of Appeals level. Petitioners argue, however, that we should overrule\nthose decisions and hold that the right to keep and bear arms is one of the \xe2\x80\x9cprivileges or immunities\nof citizens of the United States.\xe2\x80\x9d In petitioners\xe2\x80\x99 view, the Privileges or Immunities Clause protects all\nof the rights set out in the Bill of Rights, as well as some others, but petitioners are unable to identify\nthe Clause\xe2\x80\x99s full scope. Nor is there any consensus on that question among the scholars who agree\nthat the Slaughter-House Cases\xe2\x80\x99 interpretation is flawed.\nWe see no need to reconsider that interpretation here. For many decades, the question of the rights\nprotected by the Fourteenth Amendment against state infringement has been analyzed under the\nDue Process Clause of that Amendment and not under the Privileges or Immunities Clause. We\ntherefore decline to disturb the Slaughter-House holding.\n\n444 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cD\n1\nIn the late 19th century, the Court began to consider whether the Due Process Clause prohibits the\nStates from infringing rights set out in the Bill of Rights. See Hurtado v. California (1884) (due process\ndoes not require grand jury indictment); Chicago, B. & Q. R. Co. v. Chicago (1897) (due process\nprohibits States from taking of private property for public use without just compensation). Five\nfeatures of the approach taken during the ensuing era should be noted.\nFirst, the Court viewed the due process question as entirely separate from the question whether a\nright was a privilege or immunity of national citizenship.\nSecond, the Court explained that the only rights protected against state infringement by the Due\nProcess Clause were those rights \xe2\x80\x9cof such a nature that they are included in the conception of due\nprocess of law.\xe2\x80\x9d While it was \xe2\x80\x9cpossible that some of the personal rights safeguarded by the first eight\nAmendments against National action [might] also be safeguarded against state action,\xe2\x80\x9d the Court\nstated, this was \xe2\x80\x9cnot because those rights are enumerated in the first eight Amendments.\xe2\x80\x9d The Court\nused different formulations in describing the boundaries of due process. For example, * * * * in\nSnyder v. Massachusetts (1934), the Court spoke of rights that are \xe2\x80\x9cso rooted in the traditions and\nconscience of our people as to be ranked as fundamental.\xe2\x80\x9d And in Palko, the Court famously said that\ndue process protects those rights that are \xe2\x80\x9cthe very essence of a scheme of ordered liberty\xe2\x80\x9d and\nessential to \xe2\x80\x9ca fair and enlightened system of justice.\xe2\x80\x9d\nThird, in some cases decided during this era the Court \xe2\x80\x9ccan be seen as having asked, when inquiring\ninto whether some particular procedural safeguard was required of a State, if a civilized system could\nbe imagined that would not accord the particular protection.\xe2\x80\x9d Duncan v. Louisiana (1968). Thus, in\nholding that due process prohibits a State from taking private property without just compensation,\nthe Court described the right as \xe2\x80\x9ca principle of natural equity, recognized by all temperate and\ncivilized governments, from a deep and universal sense of its justice.\xe2\x80\x9d Similarly, the Court found that\ndue process did not provide a right against compelled incrimination in part because this right \xe2\x80\x9chas\nno place in the jurisprudence of civilized and free countries outside the domain of the common law.\xe2\x80\x9d\nFourth, the Court during this era was not hesitant to hold that a right set out in the Bill of Rights\nfailed to meet the test for inclusion within the protection of the Due Process Clause. The Court\nfound that some such rights qualified. But others did not.\nFinally, even when a right set out in the Bill of Rights was held to fall within the conception of due\nprocess, the protection or remedies afforded against state infringement sometimes differed from the\nprotection or remedies provided against abridgment by the Federal Government. * * * *\n\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 445\n\n\x0c2\nAn alternative theory regarding the relationship between the Bill of Rights and \xc2\xa7 1 of the Fourteenth\nAmendment was championed by Justice Black. This theory held that \xc2\xa7 1 of the Fourteenth Amendment\ntotally incorporated all of the provisions of the Bill of Rights. As Justice Black noted, the chief\ncongressional proponents of the Fourteenth Amendment espoused the view that the Amendment\nmade the Bill of Rights applicable to the States and, in so doing, overruled this Court\xe2\x80\x99s decision in\nBarron. Nonetheless, the Court never has embraced Justice Black\xe2\x80\x99s \xe2\x80\x9ctotal incorporation\xe2\x80\x9d theory.\n\n3\nWhile Justice Black\xe2\x80\x99s theory was never adopted, the Court eventually moved in that direction by\ninitiating what has been called a process of \xe2\x80\x9cselective incorporation,\xe2\x80\x9d i.e., the Court began to hold that\nthe Due Process Clause fully incorporates particular rights contained in the first eight Amendments.\nThe decisions during this time abandoned three of the previously noted characteristics of the earlier\nperiod. The Court made it clear that the governing standard is not whether any \xe2\x80\x9ccivilized system [can]\nbe imagined that would not accord the particular protection.\xe2\x80\x9d Instead, the Court inquired whether\na particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of\njustice. (referring to those \xe2\x80\x9cfundamental principles of liberty and justice which lie at the base of all our\ncivil and political institutions.\xe2\x80\x9d\nThe Court also shed any reluctance to hold that rights guaranteed by the Bill of Rights met the\nrequirements for protection under the Due Process Clause. The Court eventually incorporated almost\nall of the provisions of the Bill of Rights. Only a handful of the Bill of Rights protections remain\nunincorporated.\nFinally, the Court abandoned \xe2\x80\x9cthe notion that the Fourteenth Amendment applies to the States only\na watered-down, subjective version of the individual guarantees of the Bill of Rights,\xe2\x80\x9d stating that it\nwould be \xe2\x80\x9cincongruous\xe2\x80\x9d to apply different standards \xe2\x80\x9cdepending on whether the claim was asserted in\na state or federal court.\xe2\x80\x9d Instead, the Court decisively held that incorporated Bill of Rights protections\n\xe2\x80\x9care all to be enforced against the States under the Fourteenth Amendment according to the same\nstandards that protect those personal rights against federal encroachment.\xe2\x80\x9d\nEmploying this approach, the Court overruled earlier decisions in which it had held that particular Bill\nof Rights guarantees or remedies did not apply to the States.\n\nIII\nWith this framework in mind, we now turn directly to the question whether the Second Amendment\nright to keep and bear arms is incorporated in the concept of due process. In answering that question,\nas just explained, we must decide whether the right to keep and bear arms is fundamental to our\n\n446 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cscheme of ordered liberty, or as we have said in a related context, whether this right is \xe2\x80\x9cdeeply rooted\nin this Nation\xe2\x80\x99s history and tradition,\xe2\x80\x9d Washington v. Glucksberg (1997).\n\nA\nOur decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by\nmany legal systems from ancient times to the present day, and in Heller, we held that individual selfdefense is \xe2\x80\x9cthe central component\xe2\x80\x9d of the Second Amendment right. * * * *\n\nB\n{extensive historical discussions omitted} * * * * In sum, it is clear that the Framers and ratifiers of\nthe Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights\nnecessary to our system of ordered liberty. * * * *\n\nIV\nMunicipal respondents\xe2\x80\x99 remaining arguments are at war with our central holding in Heller: that the\nSecond Amendment protects a personal right to keep and bear arms for lawful purposes, most notably\nfor self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized\nin Heller as a second-class right, subject to an entirely different body of rules than the other Bill of\nRights guarantees that we have held to be incorporated into the Due Process Clause.\nMunicipal respondents\xe2\x80\x99 main argument is nothing less than a plea to disregard 50 years of\nincorporation precedent and return (presumably for this case only) to a bygone era. * * * *\n\nV\n{discussion of dissenting opinions omitted}\n***\nIn Heller, we held that the Second Amendment protects the right to possess a handgun in the home\nfor the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision\nof the Bill of Rights that protects a right that is fundamental from an American perspective applies\nequally to the Federal Government and the States. We therefore hold that the Due Process Clause\nof the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The\njudgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.\nIt is so ordered.\n\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 447\n\n\x0cJUSTICE THOMAS, CONCURRING IN PART AND CONCURRING IN THE JUDGMENT.\nI agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set\nforth in the Second Amendment \xe2\x80\x9cfully applicable to the States.\xe2\x80\x9d I write separately because I believe\nthere is a more straightforward path to this conclusion, one that is more faithful to the Fourteenth\nAmendment\xe2\x80\x99s text and history.\nApplying what is now a well-settled test, the plurality opinion concludes that the right to keep and\nbear arms applies to the States through the Fourteenth Amendment\xe2\x80\x99s Due Process Clause because\nit is \xe2\x80\x9cfundamental\xe2\x80\x9d to the American \xe2\x80\x9cscheme of ordered liberty,\xe2\x80\x9d (citing Duncan v. Louisiana (1968)),\nand \xe2\x80\x9c\xe2\x80\x98deeply rooted in this Nation\xe2\x80\x99s history and tradition,\xe2\x80\x99\xe2\x80\x9d (quoting Washington v. Glucksberg (1997)).\nI agree with that description of the right. But I cannot agree that it is enforceable against the States\nthrough a clause that speaks only to \xe2\x80\x9cprocess.\xe2\x80\x9d Instead, the right to keep and bear arms is a privilege\nof American citizenship that applies to the States through the Fourteenth Amendment\xe2\x80\x99s Privileges or\nImmunities Clause.\n\nI\n* * * * I acknowledge the volume of precedents that have been built upon the substantive due\nprocess framework, and I further acknowledge the importance of stare decisis to the stability of our\nNation\xe2\x80\x99s legal system. But stare decisis is only an \xe2\x80\x9cadjunct\xe2\x80\x9d of our duty as judges to decide by our best\nlights what the Constitution means. Planned Parenthood of Southeastern Pa. v. Casey (1992)\n(Rehnquist, C. J., concurring in judgment in part and dissenting in part). It is not \xe2\x80\x9can inexorable\ncommand.\xe2\x80\x9d Lawrence v. Texas (2003). Moreover, as judges, we interpret the Constitution one case or\ncontroversy at a time. The question presented in this case is not whether our entire Fourteenth\nAmendment jurisprudence must be preserved or revised, but only whether, and to what extent, a\nparticular clause in the Constitution protects the particular right at issue here. With the inquiry\nappropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the\nprocess of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified\nit.\n\nII\n* * * * This evidence plainly shows that the ratifying public understood the Privileges or Immunities\nClause to protect constitutionally enumerated rights, including the right to keep and bear arms. As\nthe Court demonstrates, there can be no doubt that \xc2\xa7 1 was understood to enforce the Second\nAmendment against the States. In my view, this is because the right to keep and bear arms was\nunderstood to be a privilege of American citizenship guaranteed by the Privileges or Immunities\nClause. * * * *\n\n448 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cIII\nMy conclusion is contrary to this Court\xe2\x80\x99s precedents, which hold that the Second Amendment right\nto keep and bear arms is not a privilege of United States citizenship. I must, therefore, consider\nwhether stare decisis requires retention of those precedents. As mentioned at the outset, my inquiry\nis limited to the right at issue here. Thus, I do not endeavor to decide in this case whether, or to what\nextent, the Privileges or Immunities Clause applies any other rights enumerated in the Constitution\nagainst the States. Nor do I suggest that the stare decisis considerations surrounding the application\nof the right to keep and bear arms against the States would be the same as those surrounding\nanother right protected by the Privileges or Immunities Clause. I consider stare decisis only as it\napplies to the question presented here.\n\nA\nThis inquiry begins with the Slaughter-House Cases. * * * * I reject Slaughter-House insofar as it\nprecludes any overlap between the privileges and immunities of state and federal citizenship. I next\nproceed to the stare decisis considerations surrounding the precedent that expressly controls the\nquestion presented here.\n\nB\nThree years after Slaughter-House, the Court in United States v. Cruikshank (1876) squarely held that\nthe right to keep and bear arms was not a privilege of American citizenship, thereby overturning the\nconvictions of militia members responsible for the brutal Colfax Massacre. Cruikshank is not a\nprecedent entitled to any respect. The flaws in its interpretation of the Privileges or Immunities\nClause are made evident by the preceding evidence of its original meaning, and I would reject the\nholding on that basis alone. But, the consequences of Cruikshank warrant mention as well.\nCruikshank\xe2\x80\x99s holding that blacks could look only to state governments for protection of their right to\nkeep and bear arms enabled private forces, often with the assistance of local governments, to\nsubjugate the newly freed slaves and their descendants through a wave of private violence designed\nto drive blacks from the voting booth and force them into peonage, an effective return to slavery.\nWithout federal enforcement of the inalienable right to keep and bear arms, these militias and mobs\nwere tragically successful in waging a campaign of terror against the very people the Fourteenth\nAmendment had just made citizens.\nTake, for example, the Hamburg Massacre of 1876. There, a white citizen militia sought out and\nmurdered a troop of black militiamen for no other reason than that they had dared to conduct a\ncelebratory Fourth of July parade through their mostly black town. The white militia commander,\n\xe2\x80\x9cPitchfork\xe2\x80\x9d Ben Tillman, later described this massacre with pride: \xe2\x80\x9c[T]he leading white men of\nEdgefield\xe2\x80\x9d had decided \xe2\x80\x9cto seize the first opportunity that the negroes might offer them to provoke a\nriot and teach the negroes a lesson by having the whites demonstrate their superiority by killing as\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 449\n\n\x0cmany of them as was justifiable.\xe2\x80\x9d S. Kantrowitz, Ben Tillman & the Reconstruction of White\nSupremacy 67 (2000) (ellipsis, brackets, and internal quotation marks omitted). None of the\nperpetrators of the Hamburg murders was ever brought to justice.\nOrganized terrorism like that perpetuated by Tillman and his cohorts proliferated in the absence of\nfederal enforcement of constitutional rights. Militias such as the Ku Klux Klan, the Knights of the\nWhite Camellia, the White Brotherhood, the Pale Faces, and the \xe2\x80\x9976 Association spread terror among\nblacks and white Republicans by breaking up Republican meetings, threatening political leaders, and\nwhipping black militiamen. These groups raped, murdered, lynched, and robbed as a means of\nintimidating, and instilling pervasive fear in, those whom they despised. A. Trelease, White Terror:\nThe Ku Klux Klan Conspiracy and Southern Reconstruction 28\xe2\x80\x9346 (1995).\nAlthough Congress enacted legislation to suppress these activities, Klan tactics remained a constant\npresence in the lives of Southern blacks for decades. Between 1882 and 1968, there were at least\n3,446 reported lynchings of blacks in the South. They were tortured and killed for a wide array of\nalleged crimes, without even the slightest hint of due process. Emmit Till, for example, was killed in\n1955 for allegedly whistling at a white woman. The fates of other targets of mob violence were\nequally depraved.\nThe use of firearms for self-defense was often the only way black citizens could protect themselves\nfrom mob violence. As Eli Cooper, one target of such violence, is said to have explained, \xe2\x80\x9c \xe2\x80\x98[t]he Negro\nhas been run over for fifty years, but it must stop now, and pistols and shotguns are the only\nweapons to stop a mob.\xe2\x80\x99 \xe2\x80\x9d Sometimes, as in Cooper\xe2\x80\x99s case, self-defense did not succeed. He was\ndragged from his home by a mob and killed as his wife looked on. But at other times, the use of\nfirearms allowed targets of mob violence to survive. One man recalled the night during his childhood\nwhen his father stood armed at a jail until morning to ward off lynchers. The experience left him with\na sense, \xe2\x80\x9cnot \xe2\x80\x98of powerlessness, but of the \xe2\x80\x9cpossibilities of salvation\xe2\x80\x9d \xe2\x80\x99 \xe2\x80\x9d that came from standing up to\nintimidation.\nIn my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the\nratifying-era public understood\xe2\x80\x94just as the Framers of the Second Amendment did\xe2\x80\x94that the right to\nkeep and bear arms was essential to the preservation of liberty. The record makes equally plain that\nthey deemed this right necessary to include in the minimum baseline of federal rights that the\nPrivileges or Immunities Clause established in the wake of the War over slavery. There is nothing\nabout Cruikshank\xe2\x80\x99s contrary holding that warrants its retention.\n***\nI agree with the Court that the Second Amendment is fully applicable to the States. I do so because the\nright to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American\ncitizenship.\nJUSTICE STEVENS, DISSENTING.\nIn District of Columbia v. Heller (2008), the Court answered the question whether a federal enclave\xe2\x80\x99s\n450 | Liberty, Equality, and Due Process: Third Edition\n\n\x0c\xe2\x80\x9cprohibition on the possession of usable handguns in the home violates the Second Amendment to\nthe Constitution.\xe2\x80\x9d The question we should be answering in this case is whether the Constitution\n\xe2\x80\x9cguarantees individuals a fundamental right,\xe2\x80\x9d enforceable against the States, \xe2\x80\x9cto possess a functional,\npersonal firearm, including a handgun, within the home.\xe2\x80\x9d That is a different\xe2\x80\x94and more\ndifficult\xe2\x80\x94inquiry than asking if the Fourteenth Amendment \xe2\x80\x9cincorporates\xe2\x80\x9d the Second Amendment.\nThe so-called incorporation question was squarely and, in my view, correctly resolved in the late 19th\ncentury. * * * *\n{Petitioners\xe2\x80\x99} briefs marshal an impressive amount of historical evidence for their argument that the\nCourt interpreted the Privileges or Immunities Clause too narrowly in the Slaughter-House Cases\n(1873). But the original meaning of the Clause is not as clear as they suggest\xe2\x80\x94and not nearly as\nclear as it would need to be to dislodge 137 years of precedent. The burden is severe for those who\nseek radical change in such an established body of constitutional doctrine. Moreover, the suggestion\nthat invigorating the Privileges or Immunities Clause will reduce judicial discretion, strikes me as\nimplausible, if not exactly backwards. \xe2\x80\x9cFor the very reason that it has so long remained a clean slate, a\nrevitalized Privileges or Immunities Clause holds special hazards for judges who are mindful that their\nproper task is not to write their personal views of appropriate public policy into the Constitution.\xe2\x80\x9d\n* * * * Heller * * * * sheds no light on the meaning of the Due Process Clause of the Fourteenth\nAmendment. Our decisions construing that Clause to render various procedural guarantees in the Bill\nof Rights enforceable against the States likewise tell us little about the meaning of the word \xe2\x80\x9cliberty\xe2\x80\x9d\nin the Clause or about the scope of its protection of nonprocedural rights.\nThis is a substantive due process case.\n\nI\nSection 1 of the Fourteenth Amendment decrees that no State shall \xe2\x80\x9cdeprive any person of life,\nliberty, or property, without due process of law.\xe2\x80\x9d The Court has filled thousands of pages expounding\nthat spare text. As I read the vast corpus of substantive due process opinions, they confirm several\nimportant principles that ought to guide our resolution of this case. The principal opinion\xe2\x80\x99s lengthy\nsummary of our \xe2\x80\x9cincorporation\xe2\x80\x9d doctrine, and its implicit (and untenable) effort to wall off that\ndoctrine from the rest of our substantive due process jurisprudence, invite a fresh survey of this old\nterrain.\nSubstantive Content\nThe first, and most basic, principle established by our cases is that the rights protected by the Due\nProcess Clause are not merely procedural in nature. At first glance, this proposition might seem\nsurprising, given that the Clause refers to \xe2\x80\x9cprocess.\xe2\x80\x9d But substance and procedure are often deeply\nentwined. Upon closer inspection, the text can be read to \xe2\x80\x9cimpos[e] nothing less than an obligation\nto give substantive content to the words \xe2\x80\x98liberty\xe2\x80\x99 and \xe2\x80\x98due process of law,\xe2\x80\x99\xe2\x80\x9d Washington v. Glucksberg\n(1997) (Souter, J., concurring in judgment), lest superficially fair procedures be permitted to \xe2\x80\x9cdestroy\nthe enjoyment\xe2\x80\x9d of life, liberty, and property, Poe v. Ullman (1961) (Harlan, J., dissenting), and the\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 451\n\n\x0cClause\xe2\x80\x99s prepositional modifier be permitted to swallow its primary command. Procedural guarantees\nare hollow unless linked to substantive interests; and no amount of process can legitimize some\ndeprivations.\nI have yet to see a persuasive argument that the Framers of the Fourteenth Amendment thought\notherwise. To the contrary, the historical evidence suggests that, at least by the time of the Civil\nWar if not much earlier, the phrase \xe2\x80\x9cdue process of law\xe2\x80\x9d had acquired substantive content as a term\nof art within the legal community. This understanding is consonant with the venerable \xe2\x80\x9cnotion that\ngovernmental authority has implied limits which preserve private autonomy,\xe2\x80\x9d a notion which predates\nthe founding and which finds reinforcement in the Constitution\xe2\x80\x99s Ninth Amendment, see Griswold v.\nConnecticut (1965) (Goldberg, J., concurring). The Due Process Clause cannot claim to be the source\nof our basic freedoms\xe2\x80\x94no legal document ever could\xe2\x80\x94but it stands as one of their foundational\nguarantors in our law.\nIf text and history are inconclusive on this point, our precedent leaves no doubt: It has been \xe2\x80\x9csettled\xe2\x80\x9d\nfor well over a century that the Due Process Clause \xe2\x80\x9capplies to matters of substantive law as well\nas to matters of procedure.\xe2\x80\x9d Time and again, we have recognized that in the Fourteenth Amendment\nas well as the Fifth, the \xe2\x80\x9cDue Process Clause guarantees more than fair process, and the \xe2\x80\x98liberty\xe2\x80\x99 it\nprotects includes more than the absence of physical restraint.\xe2\x80\x9d Glucksberg. \xe2\x80\x9cThe Clause also includes\na substantive component that \xe2\x80\x98provides heightened protection against government interference with\ncertain fundamental rights and liberty interests.\xe2\x80\x99 \xe2\x80\x9d Some of our most enduring precedents, accepted\ntoday by virtually everyone, were substantive due process decisions. See, e.g., Loving v. Virginia (1967)\n(recognizing due-process- as well as equal-protection-based right to marry person of another race);\nBolling v. Sharpe (1954) (outlawing racial segregation in District of Columbia public schools); Pierce\nv. Society of Sisters (1925) (vindicating right of parents to direct upbringing and education of their\nchildren); Meyer v. Nebraska (1923) (striking down prohibition on teaching of foreign languages).\nLiberty\nThe second principle woven through our cases is that substantive due process is fundamentally a\nmatter of personal liberty. For it is the liberty clause of the Fourteenth Amendment that grounds\nour most important holdings in this field. It is the liberty clause that enacts the Constitution\xe2\x80\x99s\n\xe2\x80\x9cpromise\xe2\x80\x9d that a measure of dignity and self-rule will be afforded to all persons. Planned Parenthood\nof Southeastern Pa. v. Casey (1992). * * * * Our substantive due process cases have episodically invoked\nvalues such as privacy and equality as well, values that in certain contexts may intersect with or\ncomplement a subject\xe2\x80\x99s liberty interests in profound ways. But as I have observed on numerous\noccasions, \xe2\x80\x9cmost of the significant [20th-century] cases raising Bill of Rights issues have, in the final\nanalysis, actually interpreted the word \xe2\x80\x98liberty\xe2\x80\x99 in the Fourteenth Amendment.\xe2\x80\x9d\nIt follows that the term \xe2\x80\x9cincorporation,\xe2\x80\x9d like the term \xe2\x80\x9cunenumerated rights,\xe2\x80\x9d is something of a\nmisnomer. Whether an asserted substantive due process interest is explicitly named in one of the first\neight Amendments to the Constitution or is not mentioned, the underlying inquiry is the same: We\nmust ask whether the interest is \xe2\x80\x9ccomprised within the term liberty.\xe2\x80\x9d As the second Justice Harlan\nhas shown, ever since the Court began considering the applicability of the Bill of Rights to the States,\n\xe2\x80\x9cthe Court\xe2\x80\x99s usual approach has been to ground the prohibitions against state action squarely on due\n452 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cprocess, without intermediate reliance on any of the first eight Amendments.\xe2\x80\x9d Malloy v. Hogan (1964)\n(dissenting opinion); see also Frankfurter, Memorandum on \xe2\x80\x9cIncorporation\xe2\x80\x9d of the Bill of Rights into the\nDue Process Clause of the Fourteenth Amendment, 78 Harv. L. Rev. 746 (1965). In the pathmarking case\nof Gitlow v. New York (1925), for example, both the majority and dissent evaluated petitioner\xe2\x80\x99s free\nspeech claim not under the First Amendment but as an aspect of \xe2\x80\x9cthe fundamental personal rights and\n\xe2\x80\x98liberties\xe2\x80\x99 protected by the due process clause of the Fourteenth Amendment from impairment by the\nStates.\xe2\x80\x9d\nIn his own classic opinion in Griswold (concurring in judgment), Justice Harlan memorably distilled\nthese precedents\xe2\x80\x99 lesson: \xe2\x80\x9cWhile the relevant inquiry may be aided by resort to one or more of the\nprovisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process\nClause of the Fourteenth Amendment stands \xe2\x80\xa6 on its own bottom.\xe2\x80\x9d Inclusion in the Bill of Rights\nis neither necessary nor sufficient for an interest to be judicially enforceable under the Fourteenth\nAmendment. This Court\xe2\x80\x99s \xe2\x80\x9c\xe2\x80\x98selective incorporation\xe2\x80\x99 \xe2\x80\x9d doctrine, is not simply \xe2\x80\x9crelated\xe2\x80\x9d to substantive\ndue process; it is a subset thereof.\nFederal/State Divergence\nThe third precept to emerge from our case law flows from the second: The rights protected against\nstate infringement by the Fourteenth Amendment\xe2\x80\x99s Due Process Clause need not be identical in shape\nor scope to the rights protected against Federal Government infringement by the various provisions\nof the Bill of Rights. As drafted, the Bill of Rights directly constrained only the Federal Government.\nAlthough the enactment of the Fourteenth Amendment profoundly altered our legal order, it \xe2\x80\x9cdid not\nunstitch the basic federalist pattern woven into our constitutional fabric.\xe2\x80\x9d Nor, for that matter, did it\nexpressly alter the Bill of Rights. The Constitution still envisions a system of divided sovereignty, still\n\xe2\x80\x9cestablishes a federal republic where local differences are to be cherished as elements of liberty\xe2\x80\x9d in the\nvast run of cases, Elementary considerations of constitutional text and structure suggest there may\nbe legitimate reasons to hold state governments to different standards than the Federal Government\nin certain areas.\nIt is true, as the Court emphasizes that we have made numerous provisions of the Bill of Rights fully\napplicable to the States. * * * *\nIt is true, as well, that during the 1960\xe2\x80\x99s the Court decided a number of cases involving procedural\nrights in which it treated the Due Process Clause as if it transplanted language from the Bill of Rights\ninto the Fourteenth Amendment. * * * * In my judgment, this line of cases is best understood as having\nconcluded that, to ensure a criminal trial satisfies essential standards of fairness, some procedures\nshould be the same in state and federal courts: The need for certainty and uniformity is more pressing,\nand the margin for error slimmer, when criminal justice is at issue. That principle has little relevance\nto the question whether a nonprocedural rule set forth in the Bill of Rights qualifies as an aspect of\nthe liberty protected by the Fourteenth Amendment.\n* * * * I do not mean to deny that there can be significant practical, as well as esthetic, benefits\nfrom treating rights symmetrically with regard to the State and Federal Governments. Jot-for-jot\nincorporation of a provision may entail greater protection of the right at issue and therefore greater\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 453\n\n\x0cfreedom for those who hold it; jot-for-jot incorporation may also yield greater clarity about the\ncontours of the legal rule. * * * *\n{But} there is a real risk that, by demanding the provisions of the Bill of Rights apply identically to\nthe States, federal courts will cause those provisions to \xe2\x80\x9cbe watered down in the needless pursuit of\nuniformity.\xe2\x80\x9d When one legal standard must prevail across dozens of jurisdictions with disparate needs\nand customs, courts will often settle on a relaxed standard. This watering-down risk is particularly\nacute when we move beyond the narrow realm of criminal procedure and into the relatively vast\ndomain of substantive rights. So long as the requirements of fundamental fairness are always and\neverywhere respected, it is not clear that greater liberty results from the jot-for-jot application of a\nprovision of the Bill of Rights to the States. Indeed, it is far from clear that proponents of an individual\nright to keep and bear arms ought to celebrate today\xe2\x80\x99s decision.\n\nII\nSo far, I have explained that substantive due process analysis generally requires us to consider the\nterm \xe2\x80\x9cliberty\xe2\x80\x9d in the Fourteenth Amendment, and that this inquiry may be informed by but does not\ndepend upon the content of the Bill of Rights. How should a court go about the analysis, then? Our\nprecedents have established, not an exact methodology, but rather a framework for decisionmaking.\nIn this respect, too, the Court\xe2\x80\x99s narrative fails to capture the continuity and flexibility in our doctrine.\nThe basic inquiry was described by Justice Cardozo more than 70 years ago. When confronted with\na substantive due process claim, we must ask whether the allegedly unlawful practice violates values\n\xe2\x80\x9cimplicit in the concept of ordered liberty.\xe2\x80\x9d Palko v. Connecticut (1937). * * * * Implicit in Justice\nCardozo\xe2\x80\x99s test is a recognition that the postulates of liberty have a universal character. Liberty claims\nthat are inseparable from the customs that prevail in a certain region, the idiosyncratic expectations\nof a certain group, or the personal preferences of their champions, may be valid claims in some sense;\nbut they are not of constitutional stature. * * * *\nJustice Cardozo\xe2\x80\x99s test undeniably requires judges to apply their own reasoned judgment, but that\ndoes not mean it involves an exercise in abstract philosophy. * * * * Textual commitments laid down\nelsewhere in the Constitution, judicial precedents, English common law, legislative and social facts,\nscientific and professional developments, practices of other civilized societies, and, above all else, the\n\xe2\x80\x9c\xe2\x80\x98traditions and conscience of our people,\xe2\x80\x99\xe2\x80\x9d Palko, are critical variables. They can provide evidence\nabout which rights really are vital to ordered liberty, as well as a spur to judicial action. * * * *\nSeveral of our most important recent decisions confirm the proposition that substantive due process\nanalysis\xe2\x80\x94from which, once again, \xe2\x80\x9cincorporation\xe2\x80\x9d analysis derives\xe2\x80\x94must not be wholly backward\nlooking. See, e.g., Lawrence v. Texas (2003) (\xe2\x80\x9c[H]istory and tradition are the starting point but not in all\ncases the ending point of the substantive due process inquiry\xe2\x80\x9d) * * * *\nThe Court\xe2\x80\x99s flight from Palko leaves its analysis, careful and scholarly though it is, much too narrow\nto provide a satisfying answer to this case. The Court hinges its entire decision on one mode\nof intellectual history, culling selected pronouncements and enactments from the 18th and 19th\n454 | Liberty, Equality, and Due Process: Third Edition\n\n\x0ccenturies to ascertain what Americans thought about firearms. Relying on Duncan and Glucksberg, the\nplurality suggests that only interests that have proved \xe2\x80\x9cfundamental from an American perspective,\xe2\x80\x9d\nor \xe2\x80\x9c \xe2\x80\x98deeply rooted in this Nation\xe2\x80\x99s history and tradition,\xe2\x80\x99 \xe2\x80\x9d (quoting Glucksberg), to the Court\xe2\x80\x99s\nsatisfaction, may qualify for incorporation into the Fourteenth Amendment. To the extent the Court\xe2\x80\x99s\nopinion could be read to imply that the historical pedigree of a right is the exclusive or dispositive\ndeterminant of its status under the Due Process Clause, the opinion is seriously mistaken.\nA rigid historical test is inappropriate in this case, most basically, because our substantive due process\ndoctrine has never evaluated substantive rights in purely, or even predominantly, historical terms.\n****\nMore fundamentally, a rigid historical methodology is unfaithful to the Constitution\xe2\x80\x99s command. For\nif it were really the case that the Fourteenth Amendment\xe2\x80\x99s guarantee of liberty embraces only those\nrights \xe2\x80\x9cso rooted in our history, tradition, and practice as to require special protection,\xe2\x80\x9d Glucksberg,\nthen the guarantee would serve little function, save to ratify those rights that state actors have already\nbeen according the most extensive protection. That approach is unfaithful to the expansive principle\nAmericans laid down when they ratified the Fourteenth Amendment and to the level of generality\nthey chose when they crafted its language; it promises an objectivity it cannot deliver and masks the\nvalue judgments that pervade any analysis of what customs, defined in what manner, are sufficiently\n\xe2\x80\x9c \xe2\x80\x98rooted\xe2\x80\x99 \xe2\x80\x9d; it countenances the most revolting injustices in the name of continuity, for we must never\nforget that not only slavery but also the subjugation of women and other rank forms of discrimination\nare part of our history; and it effaces this Court\xe2\x80\x99s distinctive role in saying what the law is, leaving the\ndevelopment and safekeeping of liberty to majoritarian political processes. It is judicial abdication in\nthe guise of judicial modesty.\nNo, the liberty safeguarded by the Fourteenth Amendment is not merely preservative in nature but\nrather is a \xe2\x80\x9cdynamic concept.\xe2\x80\x9d * * * * The judge who would outsource the interpretation of \xe2\x80\x9cliberty\xe2\x80\x9d to\nhistorical sentiment has turned his back on a task the Constitution assigned to him and drained the\ndocument of its intended vitality.\n\nIII\nAt this point a difficult question arises. In considering such a majestic term as \xe2\x80\x9cliberty\xe2\x80\x9d and applying\nit to present circumstances, how are we to do justice to its urgent call and its open texture\xe2\x80\x94and to\nthe grant of interpretive discretion the latter embodies\xe2\x80\x94without injecting excessive subjectivity or\nunduly restricting the States\xe2\x80\x99 \xe2\x80\x9cbroad latitude in experimenting with possible solutions to problems of\nvital local concern\xe2\x80\x9d? * * * *\nThe Framers did not express a clear understanding of the term to guide us, and the now-repudiated\nLochner line of cases attests to the dangers of judicial overconfidence in using substantive due process\nto advance a broad theory of the right or the good. See, e.g., Lochner v. New York (1905). * * * *\nSeveral rules of the judicial process help enforce such restraint. In the substantive due process field as\nin others, the Court has applied both the doctrine of stare decisis\xe2\x80\x94adhering to precedents, respecting\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 455\n\n\x0creliance interests, prizing stability and order in the law\xe2\x80\x94and the common-law method\xe2\x80\x94taking cases\nand controversies as they present themselves, proceeding slowly and incrementally, building on\nwhat came before. This restrained methodology was evident even in the heyday of \xe2\x80\x9cincorporation\xe2\x80\x9d\nduring the 1960\xe2\x80\x99s. Although it would have been much easier for the Court simply to declare certain\nAmendments in the Bill of Rights applicable to the States in toto, the Court took care to parse each\nAmendment into its component guarantees, evaluating them one by one. This piecemeal approach\nallowed the Court to scrutinize more closely the right at issue in any given dispute, reducing both the\nrisk and the cost of error.\nRelatedly, rather than evaluate liberty claims on an abstract plane, the Court has \xe2\x80\x9crequired in\nsubstantive-due-process cases a \xe2\x80\x98careful description\xe2\x80\x99 of the asserted fundamental liberty interest.\xe2\x80\x9d\nGlucksberg. And just as we have required such careful description from the litigants, we have required\nof ourselves that we \xe2\x80\x9cfocus on the allegations in the complaint to determine how petitioner describes\nthe constitutional right at stake.\xe2\x80\x9d This does not mean that we must define the asserted right at the\nmost specific level, thereby sapping it of a universal valence and a moral force it might otherwise have.\nIt means, simply, that we must pay close attention to the precise liberty interest the litigants have\nasked us to vindicate.\n* * * * As this discussion reflects, to acknowledge that the task of construing the liberty clause\nrequires judgment is not to say that it is a license for unbridled judicial lawmaking. To the contrary,\nonly an honest reckoning with our discretion allows for honest argumentation and meaningful\naccountability.\n\nIV\nThe question in this case, then, is not whether the Second Amendment right to keep and bear arms\n(whatever that right\xe2\x80\x99s precise contours) applies to the States because the Amendment has been\nincorporated into the Fourteenth Amendment. It has not been. The question, rather, is whether the\nparticular right asserted by petitioners applies to the States because of the Fourteenth Amendment\nitself, standing on its own bottom. * * * *\nIn short, while the utility of firearms, and handguns in particular, to the defense of hearth and home\nis certainly relevant to an assessment of petitioners\xe2\x80\x99 asserted right, there is no freestanding selfdefense claim in this case. The question we must decide is whether the interest in keeping in the\nhome a firearm of one\xe2\x80\x99s choosing\xe2\x80\x94a handgun, for petitioners\xe2\x80\x94is one that is \xe2\x80\x9ccomprised within the\nterm liberty\xe2\x80\x9d in the Fourteenth Amendment.\n\nV\nWhile I agree with the Court that our substantive due process cases offer a principled basis for\nholding that petitioners have a constitutional right to possess a usable firearm in the home, I am\nultimately persuaded that a better reading of our case law supports the city of Chicago. I would not\n456 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cforeclose the possibility that a particular plaintiff\xe2\x80\x94say, an elderly widow who lives in a dangerous\nneighborhood and does not have the strength to operate a long gun\xe2\x80\x94may have a cognizable liberty\ninterest in possessing a handgun. But I cannot accept petitioners\xe2\x80\x99 broader submission. A number of\nfactors, taken together, lead me to this conclusion.\nFirst, firearms have a fundamentally ambivalent relationship to liberty. * * * * {I}n evaluating an\nasserted right to be free from particular gun-control regulations, liberty is on both sides of the\nequation. Guns may be useful for self-defense, as well as for hunting and sport, but they also have\na unique potential to facilitate death and destruction and thereby to destabilize ordered liberty.\nYour interest in keeping and bearing a certain firearm may diminish my interest in being and feeling\nsafe from armed violence. And while granting you the right to own a handgun might make you\nsafer on any given day\xe2\x80\x94assuming the handgun\xe2\x80\x99s marginal contribution to self-defense outweighs its\nmarginal contribution to the risk of accident, suicide, and criminal mischief\xe2\x80\x94it may make you and the\ncommunity you live in less safe overall, owing to the increased number of handguns in circulation. It\nis at least reasonable for a democratically elected legislature to take such concerns into account in\nconsidering what sorts of regulations would best serve the public welfare. * * * *\nSecond, the right to possess a firearm of one\xe2\x80\x99s choosing is different in kind from the liberty interests\nwe have recognized under the Due Process Clause. Despite the plethora of substantive due process\ncases that have been decided in the post-Lochner century, I have found none that holds, states, or\neven suggests that the term \xe2\x80\x9cliberty\xe2\x80\x9d encompasses either the common-law right of self-defense or a\nright to keep and bear arms. I do not doubt for a moment that many Americans feel deeply passionate\nabout firearms, and see them as critical to their way of life as well as to their security. Nevertheless, it\ndoes not appear to be the case that the ability to own a handgun, or any particular type of firearm, is\ncritical to leading a life of autonomy, dignity, or political equality: The marketplace offers many tools\nfor self-defense, even if they are imperfect substitutes, and neither petitioners nor their amici make\nsuch a contention. Petitioners\xe2\x80\x99 claim is not the kind of substantive interest, accordingly, on which a\nuniform, judicially enforced national standard is presumptively appropriate. * * * *\nThird, the experience of other advanced democracies, including those that share our British heritage,\nundercuts the notion that an expansive right to keep and bear arms is intrinsic to ordered liberty.\nMany of these countries place restrictions on the possession, use, and carriage of firearms far more\nonerous than the restrictions found in this Nation. See Municipal Respondents\xe2\x80\x99 Brief 21\xe2\x80\x9323 (discussing\nlaws of England, Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand). That the\nUnited States is an international outlier in the permissiveness of its approach to guns does not suggest\nthat our laws are bad laws. It does suggest that this Court may not need to assume responsibility for\nmaking our laws still more permissive. * * * *\nFourth, the Second Amendment differs in kind from the Amendments that surround it * * * *\nNotwithstanding the Heller Court\xe2\x80\x99s efforts to write the Second Amendment\xe2\x80\x99s preamble out of the\nConstitution, the Amendment still serves the structural function of protecting the States from\nencroachment by an overreaching Federal Government. * * * *\nFifth, although it may be true that Americans\xe2\x80\x99 interest in firearm possession and state-law recognition\nof that interest are \xe2\x80\x9cdeeply rooted\xe2\x80\x9d in some important senses, it is equally true that the States\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 457\n\n\x0chave a long and unbroken history of regulating firearms. The idea that States may place substantial\nrestrictions on the right to keep and bear arms short of complete disarmament is, in fact, far more\nentrenched than the notion that the Federal Constitution protects any such right. Federalism is a far\n\xe2\x80\x9colder and more deeply rooted tradition than is a right to carry,\xe2\x80\x9d or to own, \xe2\x80\x9cany particular kind of\nweapon.\xe2\x80\x9d * * * *\nFinally, even apart from the States\xe2\x80\x99 long history of firearms regulation and its location at the core of\ntheir police powers, this is a quintessential area in which federalism ought to be allowed to flourish\nwithout this Court\xe2\x80\x99s meddling. Whether or not we can assert a plausible constitutional basis for\nintervening, there are powerful reasons why we should not do so. * * * *\nThis is not a case, then, that involves a \xe2\x80\x9cspecial condition\xe2\x80\x9d that \xe2\x80\x9cmay call for a correspondingly\nmore searching judicial inquiry.\xe2\x80\x9d Carolene Products, n. 4. Neither petitioners nor those most zealously\ncommitted to their views represent a group or a claim that is liable to receive unfair treatment at the\nhands of the majority. On the contrary, petitioners\xe2\x80\x99 views are supported by powerful participants in\nthe legislative process. Petitioners have given us no reason to believe that the interest in keeping and\nbearing arms entails any special need for judicial lawmaking, or that federal judges are more qualified\nto craft appropriate rules than the people\xe2\x80\x99s elected representatives. Having failed to show why their\nasserted interest is intrinsic to the concept of ordered liberty or vulnerable to maltreatment in the\npolitical arena, they have failed to show why \xe2\x80\x9cthe word liberty in the Fourteenth Amendment\xe2\x80\x9d should\nbe \xe2\x80\x9cheld to prevent the natural outcome of a dominant opinion\xe2\x80\x9d about how to deal with the problem\nof handgun violence in the city of Chicago. Lochner (Holmes, J., dissenting).\n\nVI\nThe preceding sections have already addressed many of the points made by Justice Scalia in his\nconcurrence. But in light of that opinion\xe2\x80\x99s fixation on this one, it is appropriate to say a few words\nabout Justice Scalia\xe2\x80\x99s broader claim: that his preferred method of substantive due process analysis, a\nmethod \xe2\x80\x9cthat makes the traditions of our people paramount,\xe2\x80\x9d is both more restrained and more\nfacilitative of democracy than the method I have outlined. Colorful as it is, Justice Scalia\xe2\x80\x99s critique\ndoes not have nearly as much force as does his rhetoric. His theory of substantive due process,\nmoreover, comes with its own profound difficulties. * * * *\nNor is there any escaping Palko, it seems. To qualify for substantive due process protection, Justice\nScalia has stated, an asserted liberty right must be not only deeply rooted in American tradition, \xe2\x80\x9cbut\nit must also be implicit in the concept of ordered liberty.\xe2\x80\x9d Lawrence (dissenting opinion). Applying the\nlatter, Palko-derived half of that test requires precisely the sort of reasoned judgment\xe2\x80\x94the same\nmultifaceted evaluation of the right\xe2\x80\x99s contours and consequences\xe2\x80\x94that Justice Scalia mocks in his\nconcurrence today.\n* * * * The malleability and elusiveness of history increase exponentially when we move from a pure\nquestion of original meaning, as in Heller, to Justice Scalia\xe2\x80\x99s theory of substantive due process. * * * *\nIn conducting this rudderless, panoramic tour of American legal history, the judge has more than\n\n458 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cample opportunity to \xe2\x80\x9clook over the heads of the crowd and pick out [his] friends,\xe2\x80\x9d Roper v. Simmons\n(2005) (Scalia, J., dissenting). * * * *\n\nVII\nThe fact that the right to keep and bear arms appears in the Constitution should not obscure the\nnovelty of the Court\xe2\x80\x99s decision to enforce that right against the States. By its terms, the Second\nAmendment does not apply to the States; read properly, it does not even apply to individuals outside\nof the militia context. The Second Amendment was adopted to protect the States from federal\nencroachment. And the Fourteenth Amendment has never been understood by the Court to have\n\xe2\x80\x9cincorporated\xe2\x80\x9d the entire Bill of Rights. There was nothing foreordained about today\xe2\x80\x99s outcome.\nAlthough the Court\xe2\x80\x99s decision in this case might be seen as a mere adjunct to its decision in Heller,\nthe consequences could prove far more destructive\xe2\x80\x94quite literally\xe2\x80\x94to our Nation\xe2\x80\x99s communities and\nto our constitutional structure. Thankfully, the Second Amendment right identified in Heller and its\nnewly minted Fourteenth Amendment analogue are limited, at least for now, to the home. But neither\nthe \xe2\x80\x9cassurances\xe2\x80\x9d provided by the plurality, nor the many historical sources cited in its opinion should\nobscure the reality that today\xe2\x80\x99s ruling marks a dramatic change in our law\xe2\x80\x94or that the Justices who\nhave joined it have brought to bear an awesome amount of discretion in resolving the legal question\npresented by this case.\nI would proceed more cautiously. For the reasons set out at length above, I cannot accept either\nthe methodology the Court employs or the conclusions it draws. Although impressively argued, the\nmajority\xe2\x80\x99s decision to overturn more than a century of Supreme Court precedent and to unsettle a\nmuch longer tradition of state practice is not, in my judgment, built \xe2\x80\x9cupon respect for the teachings\nof history, solid recognition of the basic values that underlie our society, and wise appreciation of the\ngreat roles that the doctrines of federalism and separation of powers have played in establishing and\npreserving American freedoms.\xe2\x80\x9d Griswold (Harlan, J., concurring in judgment).\nAccordingly, I respectfully dissent.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=41#h5p-2\n\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 459\n\n\x0cNotes\n1. The McDonald v. City of Chicago opinions are in excess of 200 pages. Our excerpts are highly edited.\nWe will return to some of the issues in McDonald, including the Second Amendment in the next\nchapter, and the issue of \xe2\x80\x9cunenumerated\xe2\x80\x9d rights under the Due Process Clause (highlighted in Justice\nStevens\xe2\x80\x99 dissent) in following chapters.\n2. Be prepared to articulate the methods of \xe2\x80\x9cincorporation\xe2\x80\x9d of a listed (\xe2\x80\x9cenumerated\xe2\x80\x9d) right in the Bill\nof Rights against state governments.\n3. Footnotes 12 and 13 in Alito\xe2\x80\x99s plurality opinion provide a useful catalogue and citations regarding the\nprovisions of the Bill of Rights that have been incorporated including case citations.\nFootnote 12 supports the proposition that \xe2\x80\x9cThe Court eventually incorporated almost all of the\nprovisions of the Bill of Rights\xe2\x80\x9d and reads:\nWith respect to the First Amendment, see Everson v. Board of Ed. of Ewing (1947)\n(Establishment Clause); Cantwell v. Connecticut (1940) (Free Exercise Clause); De Jonge v.\nOregon (1937) (freedom of assembly); Gitlow v. New York (1925) (free speech); Near v. Minnesota\nex rel. Olson (1931) (freedom of the press).\nWith respect to the Fourth Amendment, see Aguilar v. Texas (1964) (warrant requirement);\nMapp v. Ohio (1961) (exclusionary rule); Wolf v. Colorado (1949) (freedom from unreasonable\nsearches and seizures).\nWith respect to the Fifth Amendment, see Benton v. Maryland (1969) (Double Jeopardy Clause);\nMalloy v. Hogan (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co. v. Chicago\n(1897) (Just Compensation Clause).\nWith respect to the Sixth Amendment, see Duncan v. Louisiana (1968) (trial by jury in criminal\ncases); Washington v. Texas (1967) (compulsory process); Klopfer v. North Carolina (1967)\n(speedy trial); Pointer v. Texas (1965) (right to confront adverse witness); Gideon v. Wainwright\n(1963) (assistance of counsel); In re Oliver (1948) (right to a public trial).\nWith respect to the Eighth Amendment, see Robinson v. California (1962) (cruel and unusual\npunishment); Schilb v. Kuebel (1971) (prohibition against excessive bail).\nFootnote 13 discusses the \xe2\x80\x9chandful\xe2\x80\x9d of \xe2\x80\x9cBill of Rights protections\xe2\x80\x9d that remain unincorporated and\nreads:\nIn addition to the right to keep and bear arms {before McDonald} (and the Sixth Amendment\nright to a unanimous jury verdict {Apodaca v. Oregon (1972) discussed further in fn 14}), the\nonly rights not fully incorporated are (1) the Third Amendment\xe2\x80\x99s protection against quartering\nof soldiers; (2) the Fifth Amendment\xe2\x80\x99s grand jury indictment requirement; (3) the Seventh\nAmendment right to a jury trial in civil cases; and (4) the Eighth Amendment\xe2\x80\x99s prohibition on\nexcessive fines.\n460 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cWe never have decided whether the Third Amendment or the Eighth Amendment\xe2\x80\x99s prohibition\nof excessive fines applies to the States through the Due Process Clause. See Browning-Ferris\nIndustries of Vt., Inc. v. Kelco Disposal, Inc., (1989) (declining to decide whether the excessivefines protection applies to the States). Our governing decisions regarding the Grand Jury\nClause of the Fifth Amendment and the Seventh Amendment\xe2\x80\x99s civil jury requirement long\npredate the era of selective incorporation.\n4. In McDonald v. Chicago, the Court stated that it has \xe2\x80\x9cdecisively held that incorporated Bill of Rights\nprotections \xe2\x80\x98are all to be enforced against the States under the Fourteenth Amendment according to\nthe same standards that protect those personal rights against federal encroachment.\xe2\x80\x99\xe2\x80\x9d In its footnote\nto this statement (footnote 14) the Court added:\nThere is one exception to this general rule. The Court has held that although the Sixth\nAmendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it\ndoes not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406\nU. S. 404 (1972); see also Johnson v. Louisiana, 406 U. S. 356 (1972) (holding that the Due Process\nClause does not require unanimous jury verdicts in state criminal trials). But that ruling\nwas the result of an unusual division among the Justices, not an endorsement of the twotrack approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment\napplies identically to both the Federal Government and the States. See Johnson, supra, at 395\n(Brennan, J., dissenting). Nonetheless, among those eight, four Justices took the view that\nthe Sixth Amendment does not require unanimous jury verdicts in either federal or state\ncriminal trials, Apodaca, 406 U. S., at 406 (plurality opinion), and four other Justices took the\nview that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal\ntrials, id., at 414\xe2\x80\x93415 (Stewart, J., dissenting); Johnson, supra, at 381\xe2\x80\x93382 (Douglas, J., dissenting).\nJustice Powell\xe2\x80\x99s concurrence in the judgment broke the tie, and he concluded that the Sixth\nAmendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does\nnot undermine the well-established rule that incorporated Bill of Rights protections apply\nidentically to the States and the Federal Government. See Johnson, supra, at 395\xe2\x80\x93396 (Brennan,\nJ., dissenting) (footnote omitted) (\xe2\x80\x9cIn any event, the affirmance must not obscure that the\nmajority of the Court remains of the view that, as in the case of every specific of the Bill of\nRights that extends to the States, the Sixth Amendment\xe2\x80\x99s jury trial guarantee, however it is to\nbe construed, has identical application against both State and Federal Governments\xe2\x80\x9d).\nWe will return to this issue.\n\nTimbs v. Indiana\n586 U.S. ___ (2019)\n\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 461\n\n\x0cGINSBURG, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ROBERTS, C. J., AND BREYER, ALITO, SOTOMAYOR,\nKAGAN, GORSUCH, AND KAVANAUGH, JJ., JOINED. GORSUCH, J., FILED A CONCURRING OPINION. THOMAS, J., FILED AN\nOPINION CONCURRING IN THE JUDGMENT.\nJUSTICE GINSBURG DELIVERED THE OPINION OF THE COURT.\nTyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy\nto commit theft. The trial court sentenced him to one year of home detention and five years of\nprobation, which included a court-supervised addiction-treatment program. The sentence also\nrequired Timbs to pay fees and costs totaling $1,203. At the time of Timbs\xe2\x80\x99s arrest, the police seized\nhis vehicle, a Land Rover SUV Timbs had purchased for about $42,000. Timbs paid for the vehicle\nwith money he received from an insurance policy when his father died. The State engaged a private\nlaw firm to bring a civil suit for forfeiture of Timbs\xe2\x80\x99s Land Rover, charging that the vehicle had\nbeen used to transport heroin. After Timbs\xe2\x80\x99s guilty plea in the criminal case, the trial court held a\nhearing on the forfeiture demand. Although finding that Timbs\xe2\x80\x99s vehicle had been used to facilitate\nviolation of a criminal statute, the court denied the requested forfeiture, observing that Timbs had\nrecently purchased the vehicle for $42,000, more than four times the maximum $10,000 monetary fine\nassessable against him for his drug conviction. Forfeiture of the Land Rover, the court determined,\nwould be grossly disproportionate to the gravity of Timbs\xe2\x80\x99s offense, hence unconstitutional under\nthe Eighth Amendment\xe2\x80\x99s Excessive Fines Clause. The Court of Appeals of Indiana affirmed that\ndetermination, but the Indiana Supreme Court reversed. The Indiana Supreme Court did not decide\nwhether the forfeiture would be excessive. Instead, it held that the Excessive Fines Clause constrains\nonly federal action and is inapplicable to state impositions. We granted certiorari.\nThe question presented: Is the Eighth Amendment\xe2\x80\x99s Excessive Fines Clause an \xe2\x80\x9cincorporated\xe2\x80\x9d\nprotection applicable to the States under the Fourteenth Amendment\xe2\x80\x99s Due Process Clause? Like\nthe Eighth Amendment\xe2\x80\x99s proscriptions of \xe2\x80\x9ccruel and unusual punishment\xe2\x80\x9d and \xe2\x80\x9c[e]xcessive bail,\xe2\x80\x9d the\nprotection against excessive fines guards against abuses of government\xe2\x80\x99s punitive or criminal-lawenforcement authority. This safeguard, we hold, is \xe2\x80\x9cfundamental to our scheme of ordered liberty,\xe2\x80\x9d\nwith \xe2\x80\x9cdee[p] root[s] in [our] history and tradition.\xe2\x80\x9d McDonald v. Chicago (2010). The Excessive Fines\nClause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment.\n\nI\nA\nWhen ratified in 1791, the Bill of Rights applied only to the Federal Government. Barron ex rel.\nTiernan v. Mayor of Baltimore (1833). \xe2\x80\x9cThe constitutional Amendments adopted in the aftermath of\nthe Civil War,\xe2\x80\x9d however, \xe2\x80\x9cfundamentally altered our country\xe2\x80\x99s federal system.\xe2\x80\x9d McDonald. With only \xe2\x80\x9ca\nhandful\xe2\x80\x9d of exceptions, this Court has held that the Fourteenth Amendment\xe2\x80\x99s Due Process Clause\nincorporates the protections contained in the Bill of Rights, rendering them applicable to the States.\nId. [citing notes 12\xe2\x80\x9313]. A Bill of Rights protection is incorporated, we have explained, if it is\n462 | Liberty, Equality, and Due Process: Third Edition\n\n\x0c\xe2\x80\x9cfundamental to our scheme of ordered liberty,\xe2\x80\x9d or \xe2\x80\x9cdeeply rooted in this Nation\xe2\x80\x99s history and\ntradition.\xe2\x80\x9d Incorporated Bill of Rights guarantees are \xe2\x80\x9cenforced against the States under the\nFourteenth Amendment according to the same standards that protect those personal rights against\nfederal encroachment.\xe2\x80\x9d Id. Thus, if a Bill of Rights protection is incorporated, there is no daylight\nbetween the federal and state conduct it prohibits or requires.\n\nB\n* * * * Directly at issue here is the phrase \xe2\x80\x9cnor excessive fines imposed,\xe2\x80\x9d which \xe2\x80\x9climits the\ngovernment\xe2\x80\x99s power to extract payments, whether in cash or in kind, \xe2\x80\x98as punishment for some\noffense.\xe2\x80\x99\xe2\x80\x9d The Fourteenth Amendment, we hold, incorporates this protection.\nThe Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta\nguaranteed that \xe2\x80\x9c[a] Free-man shall not be amerced for a small fault, but after the manner of the\nfault; and for a great fault after the greatness thereof, saving to him his contenement . . . .\xe2\x80\x9d \xc2\xa7 20, 9\nHen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225). As relevant here, Magna Carta required that economic\nsanctions \xe2\x80\x9cbe proportioned to the wrong\xe2\x80\x9d and \xe2\x80\x9cnot be so large as to deprive [an offender] of his\nlivelihood.\xe2\x80\x9d\nDespite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in\nparticular, were criticized for using large fines to raise revenue, harass their political foes, and\nindefinitely detain those unable to pay. When James II was overthrown in the Glorious Revolution,\nthe attendant English Bill of Rights reaffirmed Magna Carta\xe2\x80\x99s guarantee by providing that \xe2\x80\x9cexcessive\nBail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments\ninflicted.\xe2\x80\x9d 1 Wm. & Mary, ch. 2, \xc2\xa7 10, in 3 Eng. Stat. at Large 441 (1689).\nAcross the Atlantic, this familiar language was adopted almost verbatim, first in the Virginia\nDeclaration of Rights, then in the Eighth Amendment * * * *\nAn even broader consensus obtained in 1868 upon ratification of the Fourteenth Amendment. By then,\nthe constitutions of 35 of the 37 States\xe2\x80\x94accounting for over 90% of the U. S. population\xe2\x80\x94expressly\nprohibited excessive fines.\nNotwithstanding the States\xe2\x80\x99 apparent agreement that the right guaranteed by the Excessive Fines\nClause was fundamental, abuses continued. Following the Civil War, Southern States enacted Black\nCodes to subjugate newly freed slaves and maintain the prewar racial hierarchy. Among these laws\xe2\x80\x99\nprovisions were draconian fines for violating broad proscriptions on \xe2\x80\x9cvagrancy\xe2\x80\x9d and other dubious\noffenses. When newly freed slaves were unable to pay imposed fines, States often demanded\ninvoluntary labor instead. Congressional debates over the Civil Rights Act of 1866, the joint resolution\nthat became the Fourteenth Amendment, and similar measures repeatedly mentioned the use of fines\nto coerce involuntary labor.\nToday, acknowledgment of the right\xe2\x80\x99s fundamental nature remains widespread. As Indiana itself\nreports, all 50 States have a constitutional provision prohibiting the imposition of excessive fines\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 463\n\n\x0ceither directly or by requiring proportionality. Indeed, Indiana explains that its own Supreme Court\nhas held that the Indiana Constitution should be interpreted to impose the same restrictions as the\nEighth Amendment. * * * *\nIn short, the historical and logical case for concluding that the Fourteenth Amendment incorporates\nthe Excessive Fines Clause is overwhelming. Protection against excessive punitive economic\nsanctions secured by the Clause is, to repeat, both \xe2\x80\x9cfundamental to our scheme of ordered liberty\xe2\x80\x9d\nand \xe2\x80\x9cdeeply rooted in this Nation\xe2\x80\x99s history and tradition.\xe2\x80\x9d McDonald.\n\nII\nThe State of Indiana does not meaningfully challenge the case for incorporating the Excessive Fines\nClause as a general matter. Instead, the State argues that the Clause does not apply to its use of civil\nin rem forfeitures because, the State says, the Clause\xe2\x80\x99s specific application to such forfeitures is\nneither fundamental nor deeply rooted.\n* * * * In considering whether the Fourteenth Amendment incorporates a protection contained in\nthe Bill of Rights, we ask whether the right guaranteed\xe2\x80\x94not each and every particular application of\nthat right\xe2\x80\x94is fundamental or deeply rooted. Indiana\xe2\x80\x99s suggestion to the contrary is inconsistent with\nthe approach we have taken in cases concerning novel applications of rights already deemed\nincorporated. For example, in Packingham v. North Carolina (2017), we held that a North Carolina\nstatute prohibiting registered sex offenders from accessing certain common-place social media\nwebsites violated the First Amendment right to freedom of speech. In reaching this conclusion, we\nnoted that the First Amendment\xe2\x80\x99s Free Speech Clause was \xe2\x80\x9capplicable to the States under the Due\nProcess Clause of the Fourteenth Amendment.\xe2\x80\x9d We did not, however, inquire whether the Free\nSpeech Clause\xe2\x80\x99s application specifically to social media websites was fundamental or deeply rooted.\nSee also, e.g., Riley v. California (2014) (holding, without separately considering incorporation, that\nStates\xe2\x80\x99 warrantless search of digital information stored on cell phones ordinarily violates the Fourth\nAmendment). Similarly here, regardless of whether application of the Excessive Fines Clause to civil\nin rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is\nincorporated remains unchanged.\nFor the reasons stated, the judgment of the Indiana Supreme Court is vacated, and the case is\nremanded for further proceedings not inconsistent with this opinion. It is so ordered.\nJUSTICE GORSUCH, CONCURRING\n* * * * As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be\nthe Fourteenth Amendment\xe2\x80\x99s Privileges or Immunities Clause, rather than, as this Court has long\nassumed, the Due Process Clause. * * * * But nothing in this case turns on that question, and,\nregardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment\nrequires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment.\n\n464 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cJUSTICE THOMAS, CONCURRING IN THE JUDGMENT\n{omitted; Thomas concludes that the Eighth Amendment\xe2\x80\x99s Excessive Fines Clause is a privilege of\nAmerican citizenship that applies to States pursuant to the Fourteenth Amendment\xe2\x80\x99s Privileges or\nImmunities Clause}\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=41#h5p-3\n\nRamos v. Louisiana\n590 U.S. ____ (2020)\n\nGorsuch, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to\nParts I, II\xe2\x80\x93A, III, and IV\xe2\x80\x93B\xe2\x80\x931, in which Ginsburg, Breyer, Sotomayor, and Kavanaugh, JJ., joined, an\nopinion with respect to Parts II\xe2\x80\x93B, IV\xe2\x80\x93B\xe2\x80\x932, and V, in which Ginsburg, Breyer, and Sotomayor, JJ.,\njoined, and an opinion with respect to Part IV\xe2\x80\x93A, in which Ginsburg and Breyer, JJ., joined. Sotomayor,\nJ., filed an opinion concurring as to all but Part IV\xe2\x80\x93A. Kavanaugh, J., filed an opinion concurring in\npart. Thomas, J., filed an opinion concurring in the judgment. Alito, J., filed a dissenting opinion, in\nwhich Roberts, C. J., joined, and in which Kagan, J., joined as to all but Part III\xe2\x80\x93D.\n\nGorsuch, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to\nParts I, II\xe2\x80\x93A, III, and IV\xe2\x80\x93B\xe2\x80\x931, in which Ginsburg, Breyer, Sotomayor, and Kavanaugh, JJ., joined, an\nopinion with respect to Parts II\xe2\x80\x93B, IV\xe2\x80\x93B\xe2\x80\x932, and V, in which Ginsburg, Breyer, and Sotomayor, JJ.,\njoined, and an opinion with respect to Part IV\xe2\x80\x93A, in which Ginsburg and Breyer, JJ., joined.\nAccused of a serious crime, Evangelisto Ramos insisted on his innocence and invoked his right to a\njury trial. Eventually, 10 jurors found the evidence against him persuasive. But a pair of jurors believed\n\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 465\n\n\x0cthat the State of Louisiana had failed to prove Mr. Ramos\xe2\x80\x99s guilt beyond reasonable doubt; they voted\nto acquit.\nIn 48 States and federal court, a single juror\xe2\x80\x99s vote to ac- quit is enough to prevent a conviction. But\nnot in Louisiana. Along with Oregon, Louisiana has long punished people based on 10-to-2 verdicts\nlike the one here. So instead of the mistrial he would have received almost anywhere else, Mr. Ramos\nwas sentenced to life in prison without the possibility of parole.\nWhy do Louisiana and Oregon allow nonunanimous convictions? Though it\xe2\x80\x99s hard to say why these\nlaws persist, their origins are clear. Louisiana first endorsed nonunanimous verdicts for serious crimes\nat a constitutional convention in 1898. According to one committee chairman, the avowed purpose\nof that convention was to \xe2\x80\x9cestablish the supremacy of the white race,\xe2\x80\x9d and the resulting document\nincluded many of the trappings of the Jim Crow era: a poll tax, a combined literacy and property\nownership test, and a grandfather clause that in practice exempted white residents from the most\nonerous of these requirements.\nNor was it only the prospect of African-Americans voting that concerned the delegates. Just a week\nbefore the convention, the U. S. Senate passed a resolution calling for an investigation into whether\nLouisiana was systemically excluding African-Americans from juries. Seeking to avoid unwanted\nnational attention, and aware that this Court would strike down any policy of overt discrimination\nagainst African-American jurors as a violation of the Fourteenth Amendment, the delegates sought\nto undermine African-American participation on juries in another way. With a careful eye on racial\ndemographics, the convention delegates sculpted a \xe2\x80\x9cfacially race-neutral\xe2\x80\x9d rule permitting 10-to-2\nverdicts in order \xe2\x80\x9cto ensure that African-American juror service would be meaningless.\xe2\x80\x9d\nAdopted in the 1930s, Oregon\xe2\x80\x99s rule permitting nonunanimous verdicts can be similarly traced to the\nrise of the Ku Klux Klan and efforts to dilute \xe2\x80\x9cthe influence of racial, ethnic, and religious minorities\non Oregon juries.\xe2\x80\x9d In fact, no one before us contests any of this; courts in both Louisiana and Oregon\nhave frankly acknowledged that race was a motivating factor in the adoption of their States\xe2\x80\x99 respective\nnonunanimity rules.\nWe took this case to decide whether the Sixth Amendment right to a jury trial\xe2\x80\x94as incorporated\nagainst the States by way of the Fourteenth Amendment\xe2\x80\x94requires a unanimous verdict to convict a\ndefendant of a serious offense. Louisiana insists that this Court has never definitively passed on the\nquestion and urges us to find its practice consistent with the Sixth Amendment. By contrast, the\ndissent doesn\xe2\x80\x99t try to defend Louisiana\xe2\x80\x99s law on Sixth or Fourteenth Amendment grounds; tacitly, it\nseems to admit that the Constitution forbids States from using nonunanimous juries. Yet,\nunprompted by Louisiana, the dissent suggests our precedent requires us to rule for the State\nanyway. What explains all this? To answer the puzzle, it\xe2\x80\x99s necessary to say a bit more about the\nmerits of the question presented, the relevant precedent, and, at last, the consequences that follow\nfrom saying what we know to be true.\n\n466 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cI\nThe Sixth Amendment promises that \xe2\x80\x9c[i]n all criminal prosecutions, the accused shall enjoy the right\nto a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have\nbeen committed, which district shall have been previously ascertained by law.\xe2\x80\x9d The Amendment goes\non to preserve other rights for criminal defendants but says nothing else about what a \xe2\x80\x9ctrial by an\nimpartial jury\xe2\x80\x9d entails.\nStill, the promise of a jury trial surely meant something\xe2\x80\x94 otherwise, there would have been no reason\nto write it down. Nor would it have made any sense to spell out the places from which jurors should\nbe drawn if their powers as jurors could be freely abridged by statute. Imagine a constitution that\nallowed a \xe2\x80\x9cjury trial\xe2\x80\x9d to mean nothing but a single person rubberstamping convictions without hearing\nany evidence\xe2\x80\x94but simultaneously insisting that the lone juror come from a specific judicial district\n\xe2\x80\x9cpreviously ascertained by law.\xe2\x80\x9d And if that\xe2\x80\x99s not enough, imagine a constitution that included the same\nhollow guarantee twice\xe2\x80\x94not only in the Sixth Amendment, but also in Article III. No: The text and\nstructure of the Constitution clearly suggest that the term \xe2\x80\x9ctrial by an impartial jury\xe2\x80\x9d carried with it\nsome meaning about the content and requirements of a jury trial.\nOne of these requirements was unanimity. Wherever we might look to determine what the term\n\xe2\x80\x9ctrial by an impartial jury trial\xe2\x80\x9d meant at the time of the Sixth Amendment\xe2\x80\x99s adoption\xe2\x80\x94whether\nit\xe2\x80\x99s the common law, state practices in the founding era, or opinions and treatises written soon\nafterward\xe2\x80\x94the answer is unmistakable. A jury must reach a unanimous verdict in order to convict.\nThe requirement of juror unanimity emerged in 14th- century England and was soon accepted as a\nvital right protected by the common law. * * * *\nIt was against this backdrop that James Madison drafted and the States ratified the Sixth Amendment\nin 1791. By that time, unanimous verdicts had been required for about 400 years. * * * *\nNor is this a case where the original public meaning was lost to time and only recently recovered. This\nCourt has, repeatedly and over many years, recognized that the Sixth Amendment requires unanimity.\n****\nThere can be no question either that the Sixth Amendment\xe2\x80\x99s unanimity requirement applies to state\nand federal criminal trials equally. This Court has long explained that the Sixth Amendment right to\na jury trial is \xe2\x80\x9cfundamental to the American scheme of justice\xe2\x80\x9d and incorporated against the States\nunder the Fourteenth Amendment. This Court has long explained, too, that incorporated provisions\nof the Bill of Rights bear the same content when asserted against States as they do when asserted\nagainst the federal government. So if the Sixth Amendment\xe2\x80\x99s right to a jury trial requires a unanimous\nverdict to support a conviction in federal court, it requires no less in state court.\n\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 467\n\n\x0cII\nA\nHow, despite these seemingly straightforward principles, have Louisiana\xe2\x80\x99s and Oregon\xe2\x80\x99s laws\nmanaged to hang on for so long? It turns out that the Sixth Amendment\xe2\x80\x99s otherwise simple story\ntook a strange turn in 1972. That year, the Court confronted these States\xe2\x80\x99 unconventional schemes\nfor the first time\xe2\x80\x94in Apodaca v. Oregon and a companion case, Johnson v. Louisiana. Ultimately, the\nCourt could do no more than issue a badly fractured set of opinions. * * * *\nJustice Powell frankly explained, he was \xe2\x80\x9cunwillin[g]\xe2\x80\x9d to follow the Court\xe2\x80\x99s precedents. So he offered\nup the essential fifth vote to uphold Mr. Apodaca\xe2\x80\x99s conviction\xe2\x80\x94if based only on a view of the\nFourteenth Amendment that he knew was (and remains) foreclosed by precedent.\n\nB\nIn the years following Apodaca, both Louisiana and Oregon chose to continue allowing\nnonunanimous verdicts. * * * *\n\nIII\nLouisiana\xe2\x80\x99s approach may not be quite as tough as trying to defend Justice Powell\xe2\x80\x99s dual-track theory\nof incorporation, but it\xe2\x80\x99s pretty close. How does the State deal with the fact this Court has said 13\ntimes over 120 years that the Sixth Amendment does require unanimity? Or the fact that five Justices\nin Apodaca said the same? The best the State can offer is to suggest that all these statements came in\ndicta. * * * *\n\nIV\nA\nIf Louisiana\xe2\x80\x99s path to an affirmance is a difficult one, the dissent\xe2\x80\x99s is trickier still. The dissent doesn\xe2\x80\x99t\ndispute that the Sixth Amendment protects the right to a unanimous jury verdict, or that the\nFourteenth Amendment extends this right to state-court trials. But, it insists, we must affirm Mr.\nRamos\xe2\x80\x99s conviction anyway. Why? Because the doctrine of stare decisis supposedly commands it.\nThere are two independent reasons why that answer falls short.\nIn the first place and as we\xe2\x80\x99ve seen, not even Louisiana tries to suggest that Apodaca supplies a\ngoverning precedent. * * * *\n\n468 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cB\n1\nThere\xe2\x80\x99s another obstacle the dissent must overcome. Even if we accepted the premise that Apodaca\nestablished a precedent, no one on the Court today is prepared to say it was rightly decided, and\nstare decisis isn\xe2\x80\x99t supposed to be the art of methodically ignoring what everyone knows to be true. Of\ncourse, the precedents of this Court warrant our deep respect as embodying the considered views of\nthose who have come before. But stare decisis has never been treated as \xe2\x80\x9can inexorable command.\xe2\x80\x9d\nAnd the doctrine is \xe2\x80\x9cat its weakest when we interpret the Constitution\xe2\x80\x9d because a mistaken judicial\ninterpretation of that supreme law is often \xe2\x80\x9cpractically impossible\xe2\x80\x9d to correct through other means.\nTo balance these considerations, when it revisits a precedent this Court has traditionally considered\n\xe2\x80\x9cthe quality of the decision\xe2\x80\x99s reasoning; its consistency with related decisions; legal developments\nsince the decision; and reliance on the decision.\xe2\x80\x9d * * * *\n\n2\n{discussion of reliance omitted}\n\nV\nOn what ground would anyone have us leave Mr. Ramos in prison for the rest of his life? Not a single\nMember of this Court is prepared to say Louisiana secured his conviction constitutionally under the\nSixth Amendment. No one be- fore us suggests that the error was harmless. Louisiana does not claim\nprecedent commands an affirmance. In the end, the best anyone can seem to muster against Mr.\nRamos is that, if we dared to admit in his case what we all know to be true about the Sixth\nAmendment, we might have to say the same in some others. But where is the justice in that? Every\njudge must learn to live with the fact he or she will make some mistakes; it comes with the territory.\nBut it is something else entirely to perpetuate something we all know to be wrong only because we\nfear the consequences of being right. The judgment of the Court of Appeals is\nReversed.\n\nJustice Sotomayor, concurring as to all but Part IV\xe2\x80\x93A.\nI agree with most of the Court\xe2\x80\x99s rationale, and so I join all but Part IV\xe2\x80\x93A of its opinion. I write\nseparately, however, to underscore three points. First, overruling precedent here is not only\nwarranted, but compelled. Second, the interests at stake point far more clearly to that outcome than\nthose in other recent cases. And finally, the racially biased origins of the Louisiana and Oregon laws\nuniquely matter here. * * * *\n\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 469\n\n\x0cJustice Kavanaugh, concurring in part.\n* * * * I agree with the Court that the time has come to overrule Apodaca. I therefore join the\nintroduction and Parts I, II\xe2\x80\x93A, III, and IV\xe2\x80\x93B\xe2\x80\x931 of the Court\xe2\x80\x99s persuasive and important opinion. I write\nseparately to explain my view of how stare decisis applies to this case.\n* * * * As the Court has exercised the \xe2\x80\x9cjudicial Power\xe2\x80\x9d over time, the Court has identified various stare\ndecisis factors. In articulating and applying those factors, the Court has, to borrow James Madison\xe2\x80\x99s\nwords, sought to liquidate and ascertain the meaning of the Article III \xe2\x80\x9cjudicial Power\xe2\x80\x9d with respect to\nprecedent. The Federalist No. 37.\nThe stare decisis factors identified by the Court in its past cases include:\n\xe2\x80\xa2\n\nthe quality of the precedent\xe2\x80\x99s reasoning;\n\n\xe2\x80\xa2\n\nthe precedent\xe2\x80\x99s consistency and coherence with previous or subsequent decisions;\n\n\xe2\x80\xa2\n\nchanged law since the prior decision;\n\n\xe2\x80\xa2\n\nchanged facts since the prior decision;\n\n\xe2\x80\xa2\n\nthe workability of the precedent;\n\n\xe2\x80\xa2\n\nthe reliance interests of those who have relied on the precedent; and\n\n\xe2\x80\xa2\n\nthe age of the precedent.\n\nBut the Court has articulated and applied those various in- dividual factors without establishing any\nconsistent methodology or roadmap for how to analyze all of the factors taken together. And in my\nview, that muddle poses a problem for the rule of law and for this Court, as the Court attempts to\napply stare decisis principles in a neutral and consistent manner.\nAs I read the Court\xe2\x80\x99s cases on precedent, those varied and somewhat elastic stare decisis factors fold\ninto three broad considerations that, in my view, can help guide the inquiry and help determine what\nconstitutes a \xe2\x80\x9cspecial justification\xe2\x80\x9d or \xe2\x80\x9cstrong grounds\xe2\x80\x9d to overrule a prior constitutional decision.\nFirst, is the prior decision not just wrong, but grievously or egregiously wrong? * * * *\nSecond, has the prior decision caused significant negative jurisprudential or real-world consequences?\n****\nThird, would overruling the prior decision unduly upset reliance interests? This consideration focuses\non the legitimate expectations of those who have reasonably relied on the precedent. In conducting\nthat inquiry, the Court may examine a variety of reliance interests and the age of the precedent,\namong other factors. * * * *\n\nJustice Thomas, concurring in the judgment.\nI agree with the Court that petitioner Evangelisto Ramos\xe2\x80\x99 felony conviction by a nonunanimous\n470 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cjury was unconstitutional. I write separately because I would resolve this case based on the Court\xe2\x80\x99s\nlongstanding view that the Sixth Amendment includes a protection against nonunanimous felony\nguilty verdicts, without undertaking a fresh analysis of the meaning of \xe2\x80\x9ctrial . . . by an impartial jury.\xe2\x80\x9d\nI also would make clear that this right applies against the States through the Privileges or Immunities\nClause of the Fourteenth Amendment, not the Due Process Clause. * * * *\n\nJustice Alito, with whom The Chief Justice joins, and with whom Justice Kagan joins as to all but Part\nIII\xe2\x80\x93D, dissenting.\nThe doctrine of stare decisis gets rough treatment in today\xe2\x80\x99s decision. Lowering the bar for overruling\nour precedents, a badly fractured majority casts aside an important and long-established decision\nwith little regard for the enormous reliance the decision has engendered. If the majority\xe2\x80\x99s approach is\nnot just a way to dispose of this one case, the decision marks an important turn.\nNearly a half century ago in Apodaca v. Oregon (1972), the Court held that the Sixth Amendment\npermits non-unanimous verdicts in state criminal trials, and in all the years since then, no Justice has\neven hinted that Apodaca should be reconsidered. Understandably thinking that Apodaca was good\nlaw, the state courts in Louisiana and Oregon have tried thousands of cases under rules that permit\nsuch verdicts. But today, the Court does away with Apodaca and, in so doing, imposes a potentially\ncrushing burden on the courts and criminal justice systems of those States. The Court, however,\nbrushes aside these consequences and even suggests that the States should have known better than\nto count on our decision.\nTo add insult to injury, the Court tars Louisiana and Oregon with the charge of racism for permitting\nnon-unanimous verdicts\xe2\x80\x94even though this Court found such verdicts to be constitutional and even\nthough there are entirely legitimate arguments for allowing them.\nI would not overrule Apodaca. Whatever one may think about the correctness of the decision, it has\nelicited enormous and entirely reasonable reliance. And before this Court decided to intervene, the\ndecision appeared to have little practical importance going forward. Louisiana has now abolished nonunanimous verdicts, and Oregon seemed on the verge of doing the same until the Court intervened.\nIn Part II of this opinion, I will address the surprising argument, advanced by three Justices in the\nmajority, that Apodaca was never a precedent at all, and in Part III, I will explain why stare decisis\nsupports retention of that precedent. But before reaching those issues, I must say something about\nthe rhetoric with which the majority has seen fit to begin its opinion.\n\nI\nToo much public discourse today is sullied by ad hominem rhetoric, that is, attempts to discredit\nan argument not by proving that it is unsound but by attacking the character or motives of the\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 471\n\n\x0cargument\xe2\x80\x99s proponents. The majority regrettably succumbs to this trend. At the start of its opinion,\nthe majority asks this rhetorical question: \xe2\x80\x9cWhy do Louisiana and Oregon allow nonunanimous\nconvictions?\xe2\x80\x9d And the answer it suggests? Racism, white supremacy, the Ku Klux Klan. Nonunanimous verdicts, the Court implies, are of a piece with Jim Crow laws, the poll tax, and other\ndevices once used to disfranchise African- Americans.\nIf Louisiana and Oregon originally adopted their laws allowing non-unanimous verdicts for these\nreasons, that is deplorable, but what does that have to do with the broad constitutional question\nbefore us? The answer is: nothing.\nFor one thing, whatever the reasons why Louisiana and Oregon originally adopted their rules many\nyears ago, both States readopted their rules under different circumstances in later years. * * * *\n\nII\n{omitted}\nIII\nA\nStare decisis has been a fundamental part of our jurisprudence since the founding, and it is an\nimportant doctrine. But, as we have said many times, it is not an \xe2\x80\x9cinexorable command.\xe2\x80\x9d There are\ncircumstances when past decisions must be overturned, but we begin with the presumption that\nwe will follow precedent, and therefore when the Court decides to overrule, it has an obligation to\nprovide an explanation for its decision.\nThis is imperative because the Court should have a body of neutral principles on the question of\noverruling precedent. The doctrine should not be transformed into a tool that favors particular\noutcomes.\n\nB\nWhat is the majority\xe2\x80\x99s justification for overruling Apodaca? With no apparent appreciation of the irony,\ntoday\xe2\x80\x99s majority, which is divided into four separate camps, criticizes the Apodaca majority as \xe2\x80\x9cbadly\nfractured.\xe2\x80\x9d * * * *\n\nC\nUp to this point, I have discussed the majority\xe2\x80\x99s reasons for overruling Apodaca, but that is only half\nthe picture. What convinces me that Apodaca should be retained are the enormous reliance interests\nof Louisiana and Oregon. For 48 years, Louisiana and Oregon, trusting that Apodaca is good law, have\n\n472 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cconducted thousands and thousands of trials under rules allowing non-unanimous verdicts. Now,\nthose States face a potential tsunami of litigation on the jury- unanimity issue. * * * *\n\nD\nThe reliance in this case far outstrips that asserted in recent cases in which past precedents were\noverruled. * * * * {omitted discussion of recent cases overruling precedent}.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=41#h5p-1\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=41#h5p-4\n\nFurther Your Understanding\nCALI Lesson: Incorporation of Constitutional Rights\nCALI, The Center for Assisted Legal Instruction, has a lesson designed to further your understanding\nof the constitutional doctrine and theories of incorporation regarding whether the federal\ngovernment, the state government, or both are bound by the specific individual constitutional rights\nin the Bill of Rights.\n\nCHAPTER EIGHT: Incorporation and Fundamental Rights | 473\n\n\x0cCHAPTER NINE: The Second Amendment\nThe Second Amendment reads in full:\nA well regulated militia being necessary to the security of a free state, the right of the people\nto keep and bear arms shall not be infringed.\n\nDistrict of Columbia v. Heller\n554 U.S. 570 (2008)\nSCALIA, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ROBERTS, C. J., AND KENNEDY, THOMAS, AND ALITO, JJ.,\nJOINED. STEVENS, J., FILED A DISSENTING OPINION, IN WHICH SOUTER, GINSBURG, AND BREYER, JJ., JOINED. BREYER, J.,\nFILED A DISSENTING OPINION, IN WHICH STEVENS, SOUTER, AND GINSBURG, JJ., JOINED.\nJUSTICE SCALIA DELIVERED THE OPINION OF THE COURT.\nWe consider whether a District of Columbia prohibition on the possession of usable handguns in the\nhome violates the Second Amendment to the Constitution.\n\nI\nThe District of Columbia generally prohibits the possession of handguns. It is a crime to carry\nan unregistered firearm, and the registration of handguns is prohibited. Wholly apart from that\nprohibition, no person may carry a handgun without a license, but the chief of police may issue\nlicenses for 1-year periods. District of Columbia law also requires residents to keep their lawfully\nowned firearms, such as registered long guns, \xe2\x80\x9cunloaded and dissembled or bound by a trigger lock or\nsimilar device\xe2\x80\x9d unless they are located in a place of business or are being used for lawful recreational\nactivities.\nRespondent Dick Heller is a D. C. special police officer authorized to carry a handgun while on duty\nat the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to\nkeep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for\nthe District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing\nthe bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying\nof a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the\nuse of \xe2\x80\x9cfunctional firearms within the home.\xe2\x80\x9d The District Court dismissed respondent\xe2\x80\x99s complaint.\nThe Court of Appeals for the District of Columbia Circuit, construing his complaint as seeking the\nright to render a firearm operable and carry it about his home in that condition only when necessary\n474 | CHAPTER NINE: The Second Amendment\n\n\x0cfor self-defense reversed. It held that the Second Amendment protects an individual right to possess\nfirearms and that the city\xe2\x80\x99s total ban on handguns, as well as its requirement that firearms in the home\nbe kept nonfunctional even when necessary for self-defense, violated that right. The Court of Appeals\ndirected the District Court to enter summary judgment for respondent.\nWe granted certiorari.\n\nII\nWe turn first to the meaning of the Second Amendment.\n\nA\nThe Second Amendment provides: \xe2\x80\x9cA well regulated Militia, being necessary to the security of a free\nState, the right of the people to keep and bear Arms, shall not be infringed.\xe2\x80\x9d In interpreting this text,\nwe are guided by the principle that \xe2\x80\x9c[t]he Constitution was written to be understood by the voters; its\nwords and phrases were used in their normal and ordinary as distinguished from technical meaning.\xe2\x80\x9d\nNormal meaning may of course include an idiomatic meaning, but it excludes secret or technical\nmeanings that would not have been known to ordinary citizens in the founding generation.\nThe two sides in this case have set out very different interpretations of the Amendment. Petitioners\nand today\xe2\x80\x99s dissenting Justices believe that it protects only the right to possess and carry a firearm\nin connection with militia service. Respondent argues that it protects an individual right to possess\na firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes,\nsuch as self-defense within the home.\nThe Second Amendment is naturally divided into two parts: its prefatory clause and its operative\nclause. The former does not limit the latter grammatically, but rather announces a purpose. The\nAmendment could be rephrased, \xe2\x80\x9cBecause a well regulated Militia is necessary to the security of a free\nState, the right of the people to keep and bear Arms shall not be infringed.\xe2\x80\x9d See J. Tiffany, A Treatise\non Government and Constitutional Law (1867); Brief for Professors of Linguistics and English as Amici\nCuriae 3 (hereinafter Linguists\xe2\x80\x99 Brief). Although this structure of the Second Amendment is unique in\nour Constitution, other legal documents of the founding era, particularly individual-rights provisions\nof state constitutions, commonly included a prefatory statement of purpose.\nLogic demands that there be a link between the stated purpose and the command. The Second\nAmendment would be nonsensical if it read, \xe2\x80\x9cA well regulated Militia, being necessary to the security\nof a free State, the right of the people to petition for redress of grievances shall not be infringed.\xe2\x80\x9d\nThat requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the\noperative clause (\xe2\x80\x9cThe separation of church and state being an important objective, the teachings of\ncanons shall have no place in our jurisprudence.\xe2\x80\x9d The preface makes clear that the operative clause\nrefers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a\nprefatory clause does not limit or expand the scope of the operative clause. \xe2\x80\x9c\xe2\x80\x98It is nothing unusual\nCHAPTER NINE: The Second Amendment | 475\n\n\x0cin acts \xe2\x80\xa6 for the enacting part to go beyond the preamble; the remedy often extends beyond the\nparticular act or mischief which first suggested the necessity of the law.\xe2\x80\x99 \xe2\x80\x9d J. Bishop, Commentaries\non Written Laws and Their Interpretation \xc2\xa7 51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165\n(K. B. 1802)). Therefore, while we will begin our textual analysis with the operative clause, we will\nreturn to the prefatory clause to ensure that our reading of the operative clause is consistent with the\nannounced purpose.\n1. OPERATIVE CLAUSE.\nA. \xe2\x80\x9cRIGHT OF THE PEOPLE.\xe2\x80\x9d\n\nThe first salient feature of the operative clause is that it codifies a \xe2\x80\x9cright of the people.\xe2\x80\x9d The\nunamended Constitution and the Bill of Rights use the phrase \xe2\x80\x9cright of the people\xe2\x80\x9d two other times,\nin the First Amendment\xe2\x80\x99s Assembly-and-Petition Clause and in the Fourth Amendment\xe2\x80\x99s Searchand-Seizure Clause. The Ninth Amendment uses very similar terminology (\xe2\x80\x9cThe enumeration in the\nConstitution, of certain rights, shall not be construed to deny or disparage others retained by the\npeople\xe2\x80\x9d). All three of these instances unambiguously refer to individual rights, not \xe2\x80\x9ccollective\xe2\x80\x9d rights,\nor rights that may be exercised only through participation in some corporate body.\nThree provisions of the Constitution refer to \xe2\x80\x9cthe people\xe2\x80\x9d in a context other than \xe2\x80\x9crights\xe2\x80\x9d\xe2\x80\x94the famous\npreamble (\xe2\x80\x9cWe the people\xe2\x80\x9d), \xc2\xa7 2 of Article I (providing that \xe2\x80\x9cthe people\xe2\x80\x9d will choose members of the\nHouse), and the Tenth Amendment (providing that those powers not given the Federal Government\nremain with \xe2\x80\x9cthe States\xe2\x80\x9d or \xe2\x80\x9cthe people\xe2\x80\x9d). Those provisions arguably refer to \xe2\x80\x9cthe people\xe2\x80\x9d acting\ncollectively\xe2\x80\x94but they deal with the exercise or reservation of powers, not rights. Nowhere else in the\nConstitution does a \xe2\x80\x9cright\xe2\x80\x9d attributed to \xe2\x80\x9cthe people\xe2\x80\x9d refer to anything other than an individual right.\nWhat is more, in all six other provisions of the Constitution that mention \xe2\x80\x9cthe people,\xe2\x80\x9d the term\nunambiguously refers to all members of the political community, not an unspecified subset. * * * *\nThis contrasts markedly with the phrase \xe2\x80\x9cthe militia\xe2\x80\x9d in the prefatory clause. As we will describe\nbelow, the \xe2\x80\x9cmilitia\xe2\x80\x9d in colonial America consisted of a subset of \xe2\x80\x9cthe people\xe2\x80\x9d\xe2\x80\x94those who were male,\nable bodied, and within a certain age range. Reading the Second Amendment as protecting only the\nright to \xe2\x80\x9ckeep and bear Arms\xe2\x80\x9d in an organized militia therefore fits poorly with the operative clause\xe2\x80\x99s\ndescription of the holder of that right as \xe2\x80\x9cthe people.\xe2\x80\x9d\nWe start therefore with a strong presumption that the Second Amendment right is exercised\nindividually and belongs to all Americans.\nB. \xe2\x80\x9cKEEP AND BEAR ARMS.\xe2\x80\x9d\n\nWe move now from the holder of the right\xe2\x80\x94\xe2\x80\x9cthe people\xe2\x80\x9d\xe2\x80\x94to the substance of the right: \xe2\x80\x9cto keep and\nbear Arms.\xe2\x80\x9d\nBefore addressing the verbs \xe2\x80\x9ckeep\xe2\x80\x9d and \xe2\x80\x9cbear,\xe2\x80\x9d we interpret their object: \xe2\x80\x9cArms.\xe2\x80\x9d The 18th-century\nmeaning is no different from the meaning today. The 1773 edition of Samuel Johnson\xe2\x80\x99s dictionary\n476 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cdefined \xe2\x80\x9carms\xe2\x80\x9d as \xe2\x80\x9cweapons of offence, or armour of defence.\xe2\x80\x9d 1 Dictionary of the English Language 107\n(4th ed.) (hereinafter Johnson). Timothy Cunningham\xe2\x80\x99s important 1771 legal dictionary defined \xe2\x80\x9carms\xe2\x80\x9d\nas \xe2\x80\x9cany thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or\nstrike another.\xe2\x80\x9d 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary\nof the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).\nThe term was applied, then as now, to weapons that were not specifically designed for military use\nand were not employed in a military capacity. For instance, Cunningham\xe2\x80\x99s legal dictionary gave as an\nexample of usage: \xe2\x80\x9cServants and labourers shall use bows and arrows on Sundays, &c. and not bear\nother arms.\xe2\x80\x9d\nSome have made the argument, bordering on the frivolous, that only those arms in existence in the\n18th century are protected by the Second Amendment. We do not interpret constitutional rights that\nway. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American\nCivil Liberties Union (1997) {internet}, and the Fourth Amendment applies to modern forms of search,\ne.g., Kyllo v. United States (2001) {thermal imaging device}, the Second Amendment extends, prima\nfacie, to all instruments that constitute bearable arms, even those that were not in existence at the\ntime of the founding.\nWe turn to the phrases \xe2\x80\x9ckeep arms\xe2\x80\x9d and \xe2\x80\x9cbear arms.\xe2\x80\x9d Johnson defined \xe2\x80\x9ckeep\xe2\x80\x9d as, most relevantly, \xe2\x80\x9c[t]o\nretain; not to lose,\xe2\x80\x9d and \xe2\x80\x9c[t]o have in custody.\xe2\x80\x9d Webster defined it as \xe2\x80\x9c[t]o hold; to retain in one\xe2\x80\x99s power\nor possession.\xe2\x80\x9d No party has apprised us of an idiomatic meaning of \xe2\x80\x9ckeep Arms.\xe2\x80\x9d Thus, the most\nnatural reading of \xe2\x80\x9ckeep Arms\xe2\x80\x9d in the Second Amendment is to \xe2\x80\x9chave weapons.\xe2\x80\x9d\nThe phrase \xe2\x80\x9ckeep arms\xe2\x80\x9d was not prevalent in the written documents of the founding period that\nwe have found, but there are a few examples, all of which favor viewing the right to \xe2\x80\x9ckeep Arms\xe2\x80\x9d\nas an individual right unconnected with militia service. William Blackstone, for example, wrote that\nCatholics convicted of not attending service in the Church of England suffered certain penalties, one\nof which was that they were not permitted to \xe2\x80\x9ckeep arms in their houses.\xe2\x80\x9d 4 Commentaries on the\nLaws of England 55 (1769) (hereinafter Blackstone). Petitioners point to militia laws of the founding\nperiod that required militia members to \xe2\x80\x9ckeep\xe2\x80\x9d arms in connection with militia service, and they\nconclude from this that the phrase \xe2\x80\x9ckeep Arms\xe2\x80\x9d has a militia-related connotation. This is rather like\nsaying that, since there are many statutes that authorize aggrieved employees to \xe2\x80\x9cfile complaints\xe2\x80\x9d with\nfederal agencies, the phrase \xe2\x80\x9cfile complaints\xe2\x80\x9d has an employment-related connotation. \xe2\x80\x9cKeep arms\xe2\x80\x9d\nwas simply a common way of referring to possessing arms, for militiamen and everyone else.\nAt the time of the founding, as now, to \xe2\x80\x9cbear\xe2\x80\x9d meant to \xe2\x80\x9ccarry.\xe2\x80\x9d When used with \xe2\x80\x9carms,\xe2\x80\x9d however, the\nterm has a meaning that refers to carrying for a particular purpose\xe2\x80\x94confrontation. * * * *\nFrom our review of founding-era sources, we conclude that this natural meaning was also the meaning\nthat \xe2\x80\x9cbear arms\xe2\x80\x9d had in the 18th century. In numerous instances, \xe2\x80\x9cbear arms\xe2\x80\x9d was unambiguously used\nto refer to the carrying of weapons outside of an organized militia. * * * *\nPetitioners justify their limitation of \xe2\x80\x9cbear arms\xe2\x80\x9d to the military context by pointing out the\nunremarkable fact that it was often used in that context\xe2\x80\x94the same mistake they made with respect\nto \xe2\x80\x9ckeep arms.\xe2\x80\x9d It is especially unremarkable that the phrase was often used in a military context\nCHAPTER NINE: The Second Amendment | 477\n\n\x0cin the federal legal sources (such as records of congressional debate) that have been the focus of\npetitioners\xe2\x80\x99 inquiry. Those sources would have had little occasion to use it except in discussions about\nthe standing army and the militia. And the phrases used primarily in those military discussions include\nnot only \xe2\x80\x9cbear arms\xe2\x80\x9d but also \xe2\x80\x9ccarry arms,\xe2\x80\x9d \xe2\x80\x9cpossess arms,\xe2\x80\x9d and \xe2\x80\x9chave arms\xe2\x80\x9d\xe2\x80\x94though no one thinks that\nthose other phrases also had special military meanings. The common references to those \xe2\x80\x9cfit to bear\narms\xe2\x80\x9d in congressional discussions about the militia are matched by use of the same phrase in the few\nnonmilitary federal contexts where the concept would be relevant. * * * *\nJustice Stevens {dissenting} places great weight on James Madison\xe2\x80\x99s inclusion of a conscientiousobjector clause in his original draft of the Second Amendment: \xe2\x80\x9cbut no person religiously scrupulous\nof bearing arms, shall be compelled to render military service in person.\xe2\x80\x9d He argues that this clause\nestablishes that the drafters of the Second Amendment intended \xe2\x80\x9cbear Arms\xe2\x80\x9d to refer only to military\nservice. It is always perilous to derive the meaning of an adopted provision from another provision\ndeleted in the drafting process. In any case, what Justice Stevens would conclude from the deleted\nprovision does not follow. It was not meant to exempt from military service those who objected to\ngoing to war but had no scruples about personal gunfights. Quakers opposed the use of arms not\njust for militia service, but for any violent purpose whatsoever\xe2\x80\x94so much so that Quaker frontiersmen\nwere forbidden to use arms to defend their families, even though \xe2\x80\x9c[i]n such circumstances the\ntemptation to seize a hunting rifle or knife in self-defense \xe2\x80\xa6 must sometimes have been almost\noverwhelming.\xe2\x80\x9d * * * *Thus, the most natural interpretation of Madison\xe2\x80\x99s deleted text is that those\nopposed to carrying weapons for potential violent confrontation would not be \xe2\x80\x9ccompelled to render\nmilitary service,\xe2\x80\x9d in which such carrying would be required.\nFinally, Justice Stevens suggests that \xe2\x80\x9ckeep and bear Arms\xe2\x80\x9d was some sort of term of art, presumably\nakin to \xe2\x80\x9chue and cry\xe2\x80\x9d or \xe2\x80\x9ccease and desist.\xe2\x80\x9d (This suggestion usefully evades the problem that there\nis no evidence whatsoever to support a military reading of \xe2\x80\x9ckeep arms.\xe2\x80\x9d) Justice Stevens believes that\nthe unitary meaning of \xe2\x80\x9ckeep and bear Arms\xe2\x80\x9d is established by the Second Amendment\xe2\x80\x99s calling it\na \xe2\x80\x9cright\xe2\x80\x9d (singular) rather than \xe2\x80\x9crights\xe2\x80\x9d (plural). There is nothing to this. State constitutions of the\nfounding period routinely grouped multiple (related) guarantees under a singular \xe2\x80\x9cright,\xe2\x80\x9d and the First\nAmendment protects the \xe2\x80\x9cright [singular] of the people peaceably to assemble, and to petition the\nGovernment for a redress of grievances.\xe2\x80\x9d* * * *\nC. MEANING OF THE OPERATIVE CLAUSE.\n\nPutting all of these textual elements together, we find that they guarantee the individual right to\npossess and carry weapons in case of confrontation. This meaning is strongly confirmed by the\nhistorical background of the Second Amendment. We look to this because it has always been widely\nunderstood that the Second Amendment, like the First and Fourth Amendments, codified a preexisting right. The very text of the Second Amendment implicitly recognizes the pre-existence of the\nright and declares only that it \xe2\x80\x9cshall not be infringed.\xe2\x80\x9d As we said in United States v. Cruikshank (1876),\n\xe2\x80\x9c[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that\ninstrument for its existence. The Second amendment declares that it shall not be infringed \xe2\x80\xa6.\xe2\x80\x9d\nBetween the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II\n478 | Liberty, Equality, and Due Process: Third Edition\n\n\x0csucceeded in using select militias loyal to them to suppress political dissidents, in part by disarming\ntheir opponents. * * * *\nAnd, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do\nto the colonists. In the tumultuous decades of the 1760\xe2\x80\x99s and 1770\xe2\x80\x99s, the Crown began to disarm the\ninhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking\ntheir rights as Englishmen to keep arms. * * * *\nThere seems to us no doubt, on the basis of both text and history, that the Second Amendment\nconferred an individual right to keep and bear arms. Of course the right was not unlimited, just as\nthe First Amendment\xe2\x80\x99s right of free speech was not. Thus, we do not read the Second Amendment to\nprotect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First\nAmendment to protect the right of citizens to speak for any purpose. Before turning to limitations\nupon the individual right, however, we must determine whether the prefatory clause of the Second\nAmendment comports with our interpretation of the operative clause.\n2. PREFATORY CLAUSE.\nThe prefatory clause reads: \xe2\x80\x9cA well regulated Militia, being necessary to the security of a free State \xe2\x80\xa6.\xe2\x80\x9d\nA. \xe2\x80\x9cWELL-REGULATED MILITIA.\xe2\x80\x9d\n\nIn United States v. Miller (1939), we explained that \xe2\x80\x9cthe Militia comprised all males physically capable\nof acting in concert for the common defense.\xe2\x80\x9d That definition comports with founding-era sources.\nPetitioners take a seemingly narrower view of the militia, stating that \xe2\x80\x9c[m]ilitias are the state- and\ncongressionally-regulated military forces described in the Militia Clauses (art. I, \xc2\xa7 8, cls. 15\xe2\x80\x9316).\xe2\x80\x9d\nAlthough we agree with petitioners\xe2\x80\x99 interpretive assumption that \xe2\x80\x9cmilitia\xe2\x80\x9d means the same thing in\nArticle I and the Second Amendment, we believe that petitioners identify the wrong thing, namely,\nthe organized militia. Unlike armies and navies, which Congress is given the power to create (\xe2\x80\x9cto\nraise \xe2\x80\xa6 Armies\xe2\x80\x9d; \xe2\x80\x9cto provide \xe2\x80\xa6 a Navy,\xe2\x80\x9d Art. I, \xc2\xa7 8, cls. 12\xe2\x80\x9313), the militia is assumed by Article I already\nto be in existence. Congress is given the power to \xe2\x80\x9cprovide for calling forth the militia,\xe2\x80\x9d \xc2\xa7 8, cl. 15;\nand the power not to create, but to \xe2\x80\x9corganiz[e]\xe2\x80\x9d it\xe2\x80\x94and not to organize \xe2\x80\x9ca\xe2\x80\x9d militia, which is what one\nwould expect if the militia were to be a federal creation, but to organize \xe2\x80\x9cthe\xe2\x80\x9d militia, connoting a\nbody already in existence. This is fully consistent with the ordinary definition of the militia as all ablebodied men. From that pool, Congress has plenary power to organize the units that will make up an\neffective fighting force. That is what Congress did in the first militia Act, which specified that \xe2\x80\x9ceach\nand every free able-bodied white male citizen of the respective states, resident therein, who is or\nshall be of the age of eighteen years, and under the age of forty-five years (except as is herein after\nexcepted) shall severally and respectively be enrolled in the militia.\xe2\x80\x9d Act of May 8, 1792, 1 Stat. 271. To be\nsure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I\nsuggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus\nupon the entire body. Although the militia consists of all able-bodied men, the federally organized\nmilitia may consist of a subset of them.\nCHAPTER NINE: The Second Amendment | 479\n\n\x0cFinally, the adjective \xe2\x80\x9cwell-regulated\xe2\x80\x9d implies nothing more than the imposition of proper discipline\nand training.\nB. \xe2\x80\x9cSECURITY OF A FREE STATE.\xe2\x80\x9d\n\nThe phrase \xe2\x80\x9csecurity of a free state\xe2\x80\x9d meant \xe2\x80\x9csecurity of a free polity,\xe2\x80\x9d not security of each of the several\nStates as the dissent below argued. * * * * It is true that the term \xe2\x80\x9cState\xe2\x80\x9d elsewhere in the Constitution\nrefers to individual States, but the phrase \xe2\x80\x9csecurity of a free state\xe2\x80\x9d and close variations seem to\nhave been terms of art in 18th-century political discourse, meaning a \xe2\x80\x9c\xe2\x80\x98free country\xe2\x80\x99 \xe2\x80\x9d or free polity.\nMoreover, the other instances of \xe2\x80\x9cstate\xe2\x80\x9d in the Constitution are typically accompanied by modifiers\nmaking clear that the reference is to the several States\xe2\x80\x94\xe2\x80\x9ceach state,\xe2\x80\x9d \xe2\x80\x9cseveral states,\xe2\x80\x9d \xe2\x80\x9cany state,\xe2\x80\x9d \xe2\x80\x9cthat\nstate,\xe2\x80\x9d \xe2\x80\x9cparticular states,\xe2\x80\x9d \xe2\x80\x9cone state,\xe2\x80\x9d \xe2\x80\x9cno state.\xe2\x80\x9d And the presence of the term \xe2\x80\x9cforeign state\xe2\x80\x9d in Article\nI and Article III shows that the word \xe2\x80\x9cstate\xe2\x80\x9d did not have a single meaning in the Constitution.\nThere are many reasons why the militia was thought to be \xe2\x80\x9cnecessary to the security of a free state.\xe2\x80\x9d\nFirst, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders\nlarge standing armies unnecessary\xe2\x80\x94an argument that Alexander Hamilton made in favor of federal\ncontrol over the militia. The Federalist No. 29 (A. Hamilton). Third, when the able-bodied men of a\nnation are trained in arms and organized, they are better able to resist tyranny.\n3. RELATIONSHIP BETWEEN PREFATORY CLAUSE AND OPERATIVE CLAUSE\nWe reach the question, then: Does the preface fit with an operative clause that creates an individual\nright to keep and bear arms? It fits perfectly, once one knows the history that the founding generation\nknew and that we have described above. That history showed that the way tyrants had eliminated a\nmilitia consisting of all the able-bodied men was not by banning the militia but simply by taking away\nthe people\xe2\x80\x99s arms, enabling a select militia or standing army to suppress political opponents. This is\nwhat had occurred in England that prompted codification of the right to have arms in the English Bill\nof Rights.\nThe debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of\nRights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be\ncodified in the Constitution. During the 1788 ratification debates, the fear that the federal government\nwould disarm the people in order to impose rule through a standing army or select militia was\npervasive in Antifederalist rhetoric. * * * * It was understood across the political spectrum that the\nright helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive\nmilitary force if the constitutional order broke down.\nIt is therefore entirely sensible that the Second Amendment\xe2\x80\x99s prefatory clause announces the purpose\nfor which the right was codified: to prevent elimination of the militia. The prefatory clause does not\nsuggest that preserving the militia was the only reason Americans valued the ancient right; most\nundoubtedly thought it even more important for self-defense and hunting. But the threat that the\nnew Federal Government would destroy the citizens\xe2\x80\x99 militia by taking away their arms was the reason\nthat right\xe2\x80\x94unlike some other English rights\xe2\x80\x94was codified in a written Constitution. Justice Breyer\xe2\x80\x99s\n480 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cassertion {in his dissenting opinion} that individual self-defense is merely a \xe2\x80\x9csubsidiary interest\xe2\x80\x9d of\nthe right to keep and bear arms, is profoundly mistaken. He bases that assertion solely upon the\nprologue\xe2\x80\x94but that can only show that self-defense had little to do with the right\xe2\x80\x99s codification; it was\nthe central component of the right itself. * * * *\n\nB\nOur interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded\nand immediately followed adoption of the Second Amendment. * * * *\nThe historical narrative that petitioners must endorse would thus treat the Federal Second\nAmendment as an odd outlier, protecting a right unknown in state constitutions or at English common\nlaw, based on little more than an overreading of the prefatory clause.\n\nC\nJustice Stevens relies on the drafting history of the Second Amendment\xe2\x80\x94the various proposals in the\nstate conventions and the debates in Congress. It is dubious to rely on such history to interpret a text\nthat was widely understood to codify a pre-existing right, rather than to fashion a new one. But even\nassuming that this legislative history is relevant, Justice Stevens flatly misreads the historical record.\n****\n\nD\nWe now address how the Second Amendment was interpreted from immediately after its ratification\nthrough the end of the 19th century. * * * *\n1. POST-RATIFICATION COMMENTARY\nThree important founding-era legal scholars interpreted the Second Amendment in published\nwritings. All three understood it to protect an individual right unconnected with militia service. * * * *\n2. PRE-CIVIL WAR CASE LAW\nThe 19th-century cases that interpreted the Second Amendment universally support an individual\nright unconnected to militia service. * * * *\n3. POST-CIVIL WAR LEGISLATION\nIn the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in\nCongress and in public discourse, as people debated whether and how to secure constitutional rights\nCHAPTER NINE: The Second Amendment | 481\n\n\x0cfor newly free slaves. Since those discussions took place 75 years after the ratification of the Second\nAmendment, they do not provide as much insight into its original meaning as earlier sources. Yet\nthose born and educated in the early 19th century faced a widespread effort to limit arms ownership\nby a large number of citizens; their understanding of the origins and continuing significance of the\nAmendment is instructive.\nBlacks were routinely disarmed by Southern States after the Civil War. Those who opposed these\ninjustices frequently stated that they infringed blacks\xe2\x80\x99 constitutional right to keep and bear arms.\nNeedless to say, the claim was not that blacks were being prohibited from carrying arms in an\norganized state militia. * * * *\n4. POST-CIVIL WAR COMMENTATORS\nEvery late-19th-century legal scholar that we have read interpreted the Second Amendment to secure\nan individual right unconnected with militia service. The most famous was the judge and professor\nThomas Cooley, who wrote a massively popular 1868 Treatise on Constitutional Limitations. * * * *\n\nE\nWe now ask whether any of our precedents forecloses the conclusions we have reached about the\nmeaning of the Second Amendment. * * * * {Extensive discussion of United States v. Cruikshank (1876);\nPresser v. Illinois (1886); United States v. Miller (1939) omitted.}\nWe conclude that nothing in our precedents forecloses our adoption of the original understanding\nof the Second Amendment. It should be unsurprising that such a significant matter has been for so\nlong judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to\nthe States, and the Federal Government did not significantly regulate the possession of firearms by\nlaw-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for\nlengthy periods. This Court first held a law to violate the First Amendment\xe2\x80\x99s guarantee of freedom of\nspeech in 1931, almost 150 years after the Amendment was ratified, and it was not until after World\nWar II that we held a law invalid under the Establishment Clause (1948). Even a question as basic as\nthe scope of proscribable libel was not addressed by this Court until 1964, nearly two centuries after\nthe founding. It is demonstrably not true that, as Justice Stevens claims, \xe2\x80\x9cfor most of our history, the\ninvalidity of Second-Amendment-based objections to firearms regulations has been well settled and\nuncontroversial.\xe2\x80\x9d For most of our history the question did not present itself.\n\nIII\nLike most rights, the right secured by the Second Amendment is not unlimited. From Blackstone\nthrough the 19th-century cases, commentators and courts routinely explained that the right was\nnot a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever\npurpose. For example, the majority of the 19th-century courts to consider the question held that\n482 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cprohibitions on carrying concealed weapons were lawful under the Second Amendment or state\nanalogues. Although we do not undertake an exhaustive historical analysis today of the full scope\nof the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding\nprohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the\ncarrying of firearms in sensitive places such as schools and government buildings, or laws imposing\nconditions and qualifications on the commercial sale of arms.\nWe also recognize another important limitation on the right to keep and carry arms. Miller said, as we\nhave explained, that the sorts of weapons protected were those \xe2\x80\x9cin common use at the time.\xe2\x80\x9d We think\nthat limitation is fairly supported by the historical tradition of prohibiting the carrying of \xe2\x80\x9cdangerous\nand unusual weapons.\xe2\x80\x9d\nIt may be objected that if weapons that are most useful in military service\xe2\x80\x94M-16 rifles and the\nlike\xe2\x80\x94may be banned, then the Second Amendment right is completely detached from the prefatory\nclause. But as we have said, the conception of the militia at the time of the Second Amendment\xe2\x80\x99s\nratification was the body of all citizens capable of military service, who would bring the sorts of lawful\nweapons that they possessed at home to militia duty. It may well be true today that a militia, to be as\neffective as militias in the 18th century, would require sophisticated arms that are highly unusual in\nsociety at large. Indeed, it may be true that no amount of small arms could be useful against modernday bombers and tanks. But the fact that modern developments have limited the degree of fit between\nthe prefatory clause and the protected right cannot change our interpretation of the right.\n\nIV\nWe turn finally to the law at issue here. As we have said, the law totally bans handgun possession in\nthe home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger\nlock at all times, rendering it inoperable.\nAs the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been\ncentral to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class\nof \xe2\x80\x9carms\xe2\x80\x9d that is overwhelmingly chosen by American society for that lawful purpose. The prohibition\nextends, moreover, to the home, where the need for defense of self, family, and property is most acute.\nUnder any of the standards of scrutiny that we have applied to enumerated constitutional rights,\nbanning from the home \xe2\x80\x9cthe most preferred firearm in the nation to \xe2\x80\x98keep\xe2\x80\x99 and use for protection of\none\xe2\x80\x99s home and family,\xe2\x80\x9d would fail constitutional muster.\nFew laws in the history of our Nation have come close to the severe restriction of the District\xe2\x80\x99s\nhandgun ban. * * * *\nIt is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns\nso long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we\nhave observed, that the American people have considered the handgun to be the quintessential selfdefense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is\neasier to store in a location that is readily accessible in an emergency; it cannot easily be redirected\nCHAPTER NINE: The Second Amendment | 483\n\n\x0cor wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift\nand aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police.\nWhatever the reason, handguns are the most popular weapon chosen by Americans for self-defense\nin the home, and a complete prohibition of their use is invalid.\nWe must also address the District\xe2\x80\x99s requirement (as applied to respondent\xe2\x80\x99s handgun) that firearms in\nthe home be rendered and kept inoperable at all times. This makes it impossible for citizens to use\nthem for the core lawful purpose of self-defense and is hence unconstitutional. The District argues\nthat we should interpret this element of the statute to contain an exception for self-defense. But we\nthink that is precluded by the unequivocal text, and by the presence of certain other enumerated\nexceptions {in the DC Code}. * * * *\nApart from his challenge to the handgun ban and the trigger-lock requirement respondent asked\nthe District Court to enjoin petitioners from enforcing the separate licensing requirement \xe2\x80\x9cin such a\nmanner as to forbid the carrying of a firearm within one\xe2\x80\x99s home or possessed land without a license.\xe2\x80\x9d\nThe Court of Appeals did not invalidate the licensing requirement, but held only that the District \xe2\x80\x9cmay\nnot prevent [a handgun] from being moved throughout one\xe2\x80\x99s house.\xe2\x80\x9d * * * * Respondent conceded\nat oral argument that he does not \xe2\x80\x9chave a problem with \xe2\x80\xa6 licensing\xe2\x80\x9d and that the District\xe2\x80\x99s law is\npermissible so long as it is \xe2\x80\x9cnot enforced in an arbitrary and capricious manner.\xe2\x80\x9d Tr. of Oral Arg. 74\xe2\x80\x9375.\nWe therefore assume that petitioners\xe2\x80\x99 issuance of a license will satisfy respondent\xe2\x80\x99s prayer for relief\nand do not address the licensing requirement.\n* * * * Nothing about those fire-safety laws {discussed in Breyer\xe2\x80\x99s dissent} undermines our analysis;\nthey do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor,\ncorrespondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to\nprevent accidents.\nJustice Breyer points to other founding-era laws that he says \xe2\x80\x9crestricted the firing of guns within\nthe city limits to at least some degree\xe2\x80\x9d in Boston, Philadelphia and New York. Those laws provide no\nsupport for the severe restriction in the present case. * * * *\nA broader point about the laws that Justice Breyer cites: All of them punished the discharge (or\nloading) of guns with a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the\nlocal jail), not with significant criminal penalties. They are akin to modern penalties for minor publicsafety infractions like speeding or jaywalking. And although such public-safety laws may not contain\nexceptions for self-defense, it is inconceivable that the threat of a jaywalking ticket would deter\nsomeone from disregarding a \xe2\x80\x9cDo Not Walk\xe2\x80\x9d sign in order to flee an attacker, or that the Government\nwould enforce those laws under such circumstances. Likewise, we do not think that a law imposing a\n5-shilling fine and forfeiture of the gun would have prevented a person in the founding era from using\na gun to protect himself or his family from violence, or that if he did so the law would be enforced\nagainst him. The District law, by contrast, far from imposing a minor fine, threatens citizens with a\nyear in prison (five years for a second violation) for even obtaining a gun in the first place.\nJustice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to\nestablish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at\n484 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cleast, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis),\nbut rather a judge-empowering \xe2\x80\x9cinterest-balancing inquiry\xe2\x80\x9d that \xe2\x80\x9casks whether the statute burdens a\nprotected interest in a way or to an extent that is out of proportion to the statute\xe2\x80\x99s salutary effects\nupon other important governmental interests.\xe2\x80\x9d * * * * We know of no other enumerated constitutional\nright whose core protection has been subjected to a freestanding \xe2\x80\x9cinterest-balancing\xe2\x80\x9d approach.\nThe very enumeration of the right takes out of the hands of government\xe2\x80\x94even the Third Branch\nof Government\xe2\x80\x94the power to decide on a case-by-case basis whether the right is really worth\ninsisting upon. A constitutional guarantee subject to future judges\xe2\x80\x99 assessments of its usefulness\nis no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were\nunderstood to have when the people adopted them, whether or not future legislatures or (yes) even\nfuture judges think that scope too broad. We would not apply an \xe2\x80\x9cinterest-balancing\xe2\x80\x9d approach to the\nprohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v.\nSkokie (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the\npeople ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not\nfor the expression of extremely unpopular and wrong-headed views. The Second Amendment is no\ndifferent. Like the First, it is the very product of an interest-balancing by the people\xe2\x80\x94which Justice\nBreyer would now conduct for them anew. And whatever else it leaves to future evaluation, it surely\nelevates above all other interests the right of law-abiding, responsible citizens to use arms in defense\nof hearth and home.\nJustice Breyer chides us for leaving so many applications of the right to keep and bear arms in\ndoubt, and for not providing extensive historical justification for those regulations of the right that\nwe describe as permissible. But since this case represents this Court\xe2\x80\x99s first in-depth examination of\nthe Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds\nv. United States (1879), our first in-depth Free Exercise Clause case, left that area in a state of\nutter certainty. And there will be time enough to expound upon the historical justifications for the\nexceptions we have mentioned if and when those exceptions come before us.\nIn sum, we hold that the District\xe2\x80\x99s ban on handgun possession in the home violates the Second\nAmendment, as does its prohibition against rendering any lawful firearm in the home operable for\nthe purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of\nSecond Amendment rights, the District must permit him to register his handgun and must issue him\na license to carry it in the home.\n***\nWe are aware of the problem of handgun violence in this country, and we take seriously the concerns\nraised by the many amici who believe that prohibition of handgun ownership is a solution. The\nConstitution leaves the District of Columbia a variety of tools for combating that problem, including\nsome measures regulating handguns. But the enshrinement of constitutional rights necessarily takes\ncertain policy choices off the table. These include the absolute prohibition of handguns held and used\nfor self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a\nsociety where our standing army is the pride of our Nation, where well-trained police forces provide\npersonal security, and where gun violence is a serious problem. That is perhaps debatable, but what is\nnot debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.\nCHAPTER NINE: The Second Amendment | 485\n\n\x0cWe affirm the judgment of the Court of Appeals.\nJUSTICE STEVENS, WITH WHOM JUSTICE SOUTER, JUSTICE GINSBURG, AND JUSTICE BREYER JOIN, DISSENTING.\nThe question presented by this case is not whether the Second Amendment protects a \xe2\x80\x9ccollective\nright\xe2\x80\x9d or an \xe2\x80\x9cindividual right.\xe2\x80\x9d Surely it protects a right that can be enforced by individuals. But a\nconclusion that the Second Amendment protects an individual right does not tell us anything about\nthe scope of that right.\nGuns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform\nmilitary duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank;\nit is equally clear that it does encompass the right to use weapons for certain military purposes.\nWhether it also protects the right to possess and use guns for nonmilitary purposes like hunting and\npersonal self-defense is the question presented by this case. The text of the Amendment, its history,\nand our decision in United States v. Miller (1939), provide a clear answer to that question.\nThe Second Amendment was adopted to protect the right of the people of each of the several States\nto maintain a well-regulated militia. It was a response to concerns raised during the ratification\nof the Constitution that the power of Congress to disarm the state militias and create a national\nstanding army posed an intolerable threat to the sovereignty of the several States. Neither the text\nof the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in\nlimiting any legislature\xe2\x80\x99s authority to regulate private civilian uses of firearms. Specifically, there is no\nindication that the Framers of the Amendment intended to enshrine the common-law right of selfdefense in the Constitution.\n****\nJUSTICE BREYER, WITH WHOM JUSTICE STEVENS, JUSTICE SOUTER, AND JUSTICE GINSBURG JOIN, DISSENTING.\nWe must decide whether a District of Columbia law that prohibits the possession of handguns in\nthe home violates the Second Amendment. The majority, relying upon its view that the Second\nAmendment seeks to protect a right of personal self-defense, holds that this law violates that\nAmendment. In my view, it does not.\n\nI\nThe majority\xe2\x80\x99s conclusion is wrong for two independent reasons. The first reason is that set forth\nby Justice Stevens\xe2\x80\x94namely, that the Second Amendment protects militia-related, not self-defenserelated, interests. These two interests are sometimes intertwined. To assure 18th-century citizens\nthat they could keep arms for militia purposes would necessarily have allowed them to keep arms\nthat they could have used for self-defense as well. But self-defense alone, detached from any militiarelated objective, is not the Amendment\xe2\x80\x99s concern.\nThe second independent reason is that the protection the Amendment provides is not absolute. The\n486 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cAmendment permits government to regulate the interests that it serves. Thus, irrespective of what\nthose interests are\xe2\x80\x94whether they do or do not include an independent interest in self-defense\xe2\x80\x94the\nmajority\xe2\x80\x99s view cannot be correct unless it can show that the District\xe2\x80\x99s regulation is unreasonable or\ninappropriate in Second Amendment terms. This the majority cannot do.\n****\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=42#h5p-5\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=42#h5p-6\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=42#h5p-7\n\nCaetano v. Massachusetts\n577 U.S. ___ (2016)\nPER CURIAM\nThe Court has held that \xe2\x80\x9cthe Second Amendment extends, prima facie, to all instruments that\nconstitute bearable arms, even those that were not in existence at the time of the founding,\xe2\x80\x9d District\nof Columbia v. Heller (2008), and that this \xe2\x80\x9cSecond Amendment right is fully applicable to the States,\xe2\x80\x9d\nMcDonald v. Chicago (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a\nMassachusetts law prohibiting the possession of stun guns after examining \xe2\x80\x9cwhether a stun gun is the\ntype of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.\xe2\x80\x9d\nCHAPTER NINE: The Second Amendment | 487\n\n\x0cThe court offered three explanations to support its holding that the Second Amendment does not\nextend to stun guns. First, the court explained that stun guns are not protected because they \xe2\x80\x9cwere\nnot in common use at the time of the Second Amendment\xe2\x80\x99s enactment.\xe2\x80\x9d This is inconsistent with\nHeller\xe2\x80\x99s clear statement that the Second Amendment \xe2\x80\x9cextends . . . to . . . arms . . . that were not in\nexistence at the time of the founding.\xe2\x80\x9d\nThe court next asked whether stun guns are \xe2\x80\x9cdangerous per se at common law and unusual,\xe2\x80\x9d in an\nattempt to apply one \xe2\x80\x9cimportant limitation on the right to keep and carry arms,\xe2\x80\x9d (referring to \xe2\x80\x9cthe\nhistorical tradition of prohibiting the carrying of \xe2\x80\x98dangerous and unusual weapons\xe2\x80\x99\xe2\x80\x9d {in Heller}). In\nso doing, the court concluded that stun guns are \xe2\x80\x9cunusual\xe2\x80\x9d because they are \xe2\x80\x9ca thoroughly modern\ninvention.\xe2\x80\x9d By equating \xe2\x80\x9cunusual\xe2\x80\x9d with \xe2\x80\x9cin common use at the time of the Second Amendment\xe2\x80\x99s\nenactment,\xe2\x80\x9d the court\xe2\x80\x99s second explanation is the same as the first; it is inconsistent with Heller for\nthe same reason.\nFinally, the court used \xe2\x80\x9ca contemporary lens\xe2\x80\x9d and found \xe2\x80\x9cnothing in the record to suggest that [stun\nguns] are readily adaptable to use in the military.\xe2\x80\x9d But Heller rejected the proposition \xe2\x80\x9cthat only those\nweapons useful in warfare are protected.\xe2\x80\x9d\nFor these three reasons, the explanation the Massachusetts court offered for upholding the law\ncontradicts this Court\xe2\x80\x99s precedent. Consequently, the petition for a writ of certiorari and the motion\nfor leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of\nMassachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this\nopinion.\nIt is so ordered.\nJUSTICE ALITO, WITH WHOM JUSTICE THOMAS JOINS, CONCURRING IN THE JUDGMENT {OMITTED}\n{includes a discussion of the domestic violence context of the case in which Caetano purchased a stun\ngun to protect herself from her abusive ex-boyfriend}.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=42#h5p-8\n\n488 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cNew York State Rifle and Pistol Ass\xe2\x80\x99n v. Cuomo\nand The Connecticut Citizens\xe2\x80\x99 Defense League v. Malloy\n804 F.3d 242 (2nd Cir. 2015)\ncert denied, sub nom Shew v. Malloy, __ U.S. __ (2016).\nBEFORE JUDGES CABRANES, LOHIER, AND DRONEY\nJOS\xc3\x89 A. CABRANES, CIRCUIT JUDGE {FOR THE UNANIMOUS SECOND CIRCUIT PANEL}:\nBefore the Court are two appeals challenging gun-control legislation enacted by the New York and\nConnecticut legislatures in the wake of the 2012 mass murders at Sandy Hook Elementary School\nin Newtown, Connecticut. The New York and Connecticut laws at issue prohibit the possession\nof certain semiautomatic \xe2\x80\x9cassault weapons\xe2\x80\x9d and large-capacity magazines. Following the entry of\nsummary judgment in favor of defendants on the central claims in both the Western District of\nNew York (William M. Skretny, Chief Judge) and the District of Connecticut (Alfred V. Covello, Judge),\nplaintiffs in both suits now press two arguments on appeal. First, they challenge the constitutionality\nof the statutes under the Second Amendment; and second, they challenge certain provisions of\nthe statutes as unconstitutionally vague. {Most subsequent references to vagueness are omitted}.\nDefendants in the New York action also cross-appeal the District Court\xe2\x80\x99s invalidation of New York\xe2\x80\x99s\nseparate seven-round load limit and voiding of two statutory provisions as facially unconstitutionally\nvague.\nWe hold that the core provisions of the New York and Connecticut laws prohibiting possession of\nsemiautomatic assault weapons and large-capacity magazines do not violate the Second Amendment,\nand that the challenged individual provisions are not void for vagueness. The particular provision\nof New York\xe2\x80\x99s law regulating load limits, however, does not survive the requisite scrutiny. One\nfurther specific provision\xe2\x80\x94Connecticut\xe2\x80\x99s prohibition on the non-semiautomatic Remington\n7615\xe2\x80\x94unconstitutionally infringes upon the Second Amendment right. Accordingly, we AFFIRM in part\nthe judgment of the District Court for the District of Connecticut insofar as it upheld the prohibition\nof semiautomatic assault weapons and large-capacity magazines, and REVERSE in part its holding\nwith respect to the Remington. With respect to the judgment of the District Court for the Western\nDistrict of New York, we REVERSE in part certain vagueness holdings, and we otherwise AFFIRM that\njudgment insofar as it upheld the prohibition of semiautomatic assault weapons and large-capacity\nmagazines and invalidated the load limit.\n\nCHAPTER NINE: The Second Amendment | 489\n\n\x0cBACKGROUND\nI. Prior \xe2\x80\x9cAssault Weapon\xe2\x80\x9d Legislation\nNew York and Connecticut have long restricted possession of certain automatic and semiautomatic\nfirearms that came to be known as \xe2\x80\x9cassault weapons.\xe2\x80\x9d In 1993, Connecticut\xe2\x80\x99s General Assembly\nadopted the state\xe2\x80\x99s first assault-weapon ban, which criminalized the possession of firearms \xe2\x80\x9ccapable\nof fully automatic, semiautomatic or burst fire at the option of the user,\xe2\x80\x9d including 67 specifically\nenumerated semiautomatic firearms.\nThe following year, after five years of hearings on the harms thought to be caused by certain firearms,\nthe U.S. Congress enacted legislation restricting the manufacture, transfer, and possession of certain\n\xe2\x80\x9csemiautomatic 1 assault weapons.\xe2\x80\x9d The 1994 federal statute defined \xe2\x80\x9csemiautomatic assault weapons\xe2\x80\x9d\nin two ways. First, it catalogued 18 specifically prohibited firearms, including, as relevant here, the Colt\nAR\xe2\x80\x9315. Second, it introduced a \xe2\x80\x9ctwo-feature test,\xe2\x80\x9d which prohibited any semiautomatic firearm that\ncontained at least two listed military-style features, including a telescoping stock, a conspicuously\nprotruding pistol grip, a bayonet mount, a flash suppressor, and a grenade launcher. The federal\nstatute also prohibited magazines with a capacity of more than ten rounds of ammunition, or which\ncould be \xe2\x80\x9creadily restored or converted to accept\xe2\x80\x9d more than 10 rounds. The federal assault-weapons\nban expired in 2004, pursuant to its sunset provision.\nFollowing the passage of the federal assault-weapons ban, both New York, in 2000, and Connecticut,\nin 2001, enacted legislation that closely mirrored the federal statute, including the two-feature test\nfor prohibited semiautomatic firearms. Unlike the federal statute, however, these state laws contained\nno sunset provisions and thus remained in force until amended by the statutes at issue here.\nOn December 14, 2012, a gunman shot his way into Sandy Hook Elementary School in Newtown,\nConnecticut and murdered twenty first-graders and six adults using a semiautomatic AR\xe2\x80\x9315\xe2\x80\x93type rifle\nwith ten large-capacity magazines. This appalling attack, in addition to other recent mass shootings,\nprovided the immediate impetus for the legislation at issue in this appeal.\n\nII. The New York Legislation\nNew York enacted the Secure Ammunition and Firearms Enforcement Act (SAFE Act) on January 15,\n2013. The SAFE Act expands the definition of prohibited \xe2\x80\x9cassault weapons\xe2\x80\x9d by replacing the prior\ntwo-feature test with a stricter one-feature test. As the name suggests, the new test defines a\nsemiautomatic firearm as a prohibited \xe2\x80\x9cassault weapon\xe2\x80\x9d if it contains any one of an enumerated list\nof military-style features, including a telescoping stock, a conspicuously protruding pistol grip, a\nthumbhole stock, a bayonet mount, a flash suppressor, a barrel shroud, and a grenade launcher. This\nstatutory definition encompasses, and thereby bans, the semiautomatic weapon used by the massshooter at Sandy Hook. New York law makes the possession, manufacture, transport, or disposal of an\n\xe2\x80\x9cassault weapon\xe2\x80\x9d a felony. Pursuant to the SAFE Act\xe2\x80\x99s grandfather clause, however, pre-existing lawful\n490 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cowners of banned assault weapons may continue to possess them if they register those weapons with\nthe New York State Police.\nThe SAFE Act also bans magazines that can hold more than ten rounds of ammunition or that can\nbe readily restored or converted to accept more than ten rounds. Although New York had restricted\npossession of such magazines since 2000, the SAFE Act eliminated a grandfather clause for magazines\nmanufactured before September 1994.\nThe SAFE Act\xe2\x80\x99s large-capacity-magazine ban contains an additional, unique prohibition on possession\nof a magazine loaded with more than seven rounds of ammunition. (For the purpose of this definition,\na round is a single unit of ammunition.) As originally enacted, the SAFE Act would have imposed\na magazine capacity restriction of seven rounds. Because very few seven-round magazines are\nmanufactured, however, the law was subsequently amended to impose a ten-round capacity\nrestriction coupled with a seven-round load limit. Thus, as amended, the statute permits a New York\ngun owner to possess a magazine capable of holding up to ten rounds, but he may not fully load it\noutside of a firing range or official shooting competition.\n\nIII. The Connecticut Legislation\nSeveral months after New York passed the SAFE Act, and after extensive public hearings and legislative\nand executive study, Connecticut adopted \xe2\x80\x9cAn Act Concerning Gun Violence Prevention and\nChildren\xe2\x80\x99s Safety\xe2\x80\x9d on April 4, 2013, and later amended the 8 on June 18, 2013. Like its New York\nanalogue, the Connecticut legislation replaced the state\xe2\x80\x99s two-feature definition of prohibited \xe2\x80\x9cassault\nweapons\xe2\x80\x9d with a stricter one-feature test, using a list of military-style features similar to New\nYork\xe2\x80\x99s, including a telescoping stock, a thumbhole stock, a forward pistol grip, a flash suppressor, a\ngrenade launcher, and a threaded barrel capable of accepting a flash suppressor or silencer. Unlike its\ncounterpart in New York, the Connecticut legislation additionally bans 183 particular assault weapons\nlisted by make and model, as well as \xe2\x80\x9ccopies or duplicates\xe2\x80\x9d of most of those firearms. The Connecticut\nlaw makes it a felony to transport, import, sell, or possess semiautomatic \xe2\x80\x9cassault weapons,\xe2\x80\x9d and it\nalso contains a grandfather clause permitting pre-existing owners of assault weapons to continue to\npossess their firearms if properly registered with the state.\nThe June 2013 amendment to the Connecticut legislation criminalizes the possession of \xe2\x80\x9c[l]arge\ncapacity magazine[s]\xe2\x80\x9d that can hold, or can be \xe2\x80\x9creadily restored or converted to accept,\xe2\x80\x9d more than\nten rounds of ammunition. Unlike its New York counterpart, however, the Connecticut legislation\ncontains no additional \xe2\x80\x9cload limit\xe2\x80\x9d rule.\n\nIV. Procedural History\nPlaintiffs\xe2\x80\x94a combination of advocacy groups, businesses, and individual gun owners\xe2\x80\x94filed suit\nagainst the governors of New York and Connecticut and other state officials, first in the Western\nDistrict of New York on March 21, 2013 and then in the District of Connecticut on May 22, 2013.\nCHAPTER NINE: The Second Amendment | 491\n\n\x0cIn both actions, plaintiffs sought declaratory and injunctive relief for alleged infringement of their\nconstitutional rights. Specifically, plaintiffs contended that the statutes\xe2\x80\x99 prohibitions on\nsemiautomatic assault weapons and large-capacity magazines violate their Second Amendment\nrights, and that numerous specific provisions of each statute are unconstitutionally vague. In the\nNew York action, plaintiffs also challenged the seven-round load limit as a violation of the Second\nAmendment.\nFollowing plaintiffs\xe2\x80\x99 motions for preliminary injunctions, parties in both suits cross-moved for\nsummary judgment. On December 31, 2013, Chief Judge Skretny of the Western District of New York\ngranted in part and denied in part the cross-motions for summary judgment. Specifically, the District\nCourt found that New York\xe2\x80\x99s ban on assault weapons and large capacity magazines burdened plaintiffs\xe2\x80\x99\nSecond Amendment rights, but did not violate the Second Amendment upon application of so-called\nintermediate scrutiny. The Court also held, however, that the seven-round load limit did not survive\nintermediate scrutiny. * * * * In sum, Chief Judge Skretny upheld as constitutional, upon intermediate\nscrutiny, the core provisions of New York\xe2\x80\x99s SAFE Act restricting semiautomatic assault weapons and\nlarge-capacity magazines, but struck down certain marginal aspects of the law.\nOn January 30, 2014, Judge Covello of the District of Connecticut granted defendants\xe2\x80\x99 motion for\nsummary judgment in its entirety. Like his counterpart in New York, Judge Covello held that the\nConnecticut legislation burdened plaintiffs\xe2\x80\x99 Second Amendment rights, applied intermediate scrutiny,\nand concluded that the prohibition on semiautomatic assault weapons and large-capacity magazines\nwas fully consistent with the Second Amendment. * * * *\nPlaintiffs thereafter appealed. In the New York action only, defendants cross-appeal the District\nCourt\xe2\x80\x99s judgment insofar as it invalidated the SAFE Act\xe2\x80\x99s seven-round load limit and voided as\nunconstitutionally vague the SAFE Act\xe2\x80\x99s prohibitions on the misspelled \xe2\x80\x9cmuzzle break\xe2\x80\x9d and\n\xe2\x80\x9csemiautomatic version[s]\xe2\x80\x9d of an automatic rifle, shotgun, or firearm.\n\nDISCUSSION\nThese appeals present two questions: first, whether the Second Amendment permits the regulation of\nthe assault weapons and large-capacity magazines at issue here; and second, whether the challenged\nprovisions of the statutes provide constitutionally sufficient notice of the conduct proscribed {and are\nvoid for vagueness}.\nWe review de novo a district court\xe2\x80\x99s order granting summary judgment, construing the evidence in\nthe light most favorable to the non-moving party. As relevant here, we also \xe2\x80\x9creview de novo the\ndistrict court\xe2\x80\x99s legal conclusions, including those interpreting and determining the constitutionality\nof a statute.\xe2\x80\x9d * * * *\n\nV. Second Amendment Challenge\nWe conclude that the core challenged prohibitions of assault weapons and large-capacity magazines\n492 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cdo not violate the Second Amendment. Guided by the teachings of the Supreme Court, our own\njurisprudence, and the examples provided by our sister circuits, we adopt a two-step analytical\nframework, determining first whether the regulated weapons fall within the protections of the Second\nAmendment and then deciding and applying the appropriate level of constitutional scrutiny. Only two\nspecific provisions\xe2\x80\x94New York\xe2\x80\x99s seven-round load limit, and Connecticut\xe2\x80\x99s prohibition on the nonsemiautomatic Remington 7615\xe2\x80\x94are unconstitutional.\n\na. Heller and McDonald\nThe Second Amendment provides that \xe2\x80\x9c[a] well regulated Militia, being necessary to the security of a\nfree State, the right of the people to keep and bear Arms, shall not be infringed.\xe2\x80\x9d\nOur analysis of that amendment begins with the seminal decision in District of Columbia v. Heller\n(2008). In Heller, the Supreme Court, based on an extensive textual and historical analysis, announced\nthat the Second Amendment\xe2\x80\x99s operative clause codified a pre-existing \xe2\x80\x9cindividual right to possess\nand carry weapons.\xe2\x80\x9d Recognizing, however, that \xe2\x80\x9cthe right secured by the Second Amendment is not\nunlimited,\xe2\x80\x9d Heller emphasized that \xe2\x80\x9cthe right was not a right to keep and carry any weapon whatsoever\nin any manner whatsoever and for whatever purpose.\xe2\x80\x9d Instead, the Second Amendment protects only\nthose weapons \xe2\x80\x9c \xe2\x80\x98in common use\xe2\x80\x99 \xe2\x80\x9d by citizens \xe2\x80\x9cfor lawful purposes like self-defense.\xe2\x80\x9d\nHaving established these basic precepts, Heller concluded that the District of Columbia\xe2\x80\x99s ban on\npossession of handguns was unconstitutional under the Second Amendment. The Supreme Court\nnoted that \xe2\x80\x9chandguns are the most popular weapon chosen by Americans for self-defense in the\nhome,\xe2\x80\x9d where, the Court observed, \xe2\x80\x9cthe need for defense of self, family, and property is most acute.\xe2\x80\x9d\nHeller stopped well short of extending its rationale to other firearms restrictions. Indeed, Heller\nexplicitly identified as \xe2\x80\x9cpresumptively lawful\xe2\x80\x9d such \xe2\x80\x9cregulatory measures\xe2\x80\x9d as \xe2\x80\x9cprohibitions on the\npossession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in\nsensitive places such as schools and government buildings, [and] laws imposing conditions and\nqualifications on the commercial sale of arms.\xe2\x80\x9d Most importantly here, Heller also endorsed the\n\xe2\x80\x9chistorical tradition of prohibiting the carrying of dangerous and unusual weapons.\xe2\x80\x9d\nAside from these broad guidelines, Heller offered little guidance for resolving future Second\nAmendment challenges. The Court did imply that such challenges are subject to one of \xe2\x80\x9cthe standards\nof scrutiny that we have applied to enumerated constitutional rights,\xe2\x80\x9d though it declined to say which,\naccepting that many applications of the Second Amendment would remain \xe2\x80\x9cin doubt.\xe2\x80\x9d\nThat doubt persisted after McDonald v. City of Chicago (2010) in which the Supreme Court invalidated\nmunicipal statutes banning handguns in the home. McDonald was a landmark case in one respect\xe2\x80\x94the\nCourt held for the first time that the Fourteenth Amendment \xe2\x80\x9cincorporates\xe2\x80\x9d the Second Amendment\nagainst the states. Otherwise, McDonald did not expand upon Heller\xe2\x80\x99s analysis and simply reiterated\nHeller\xe2\x80\x99s assurances regarding the viability of many gun-control provisions. Neither Heller nor\nMcDonald, then, delineated the precise scope of the Second Amendment or the standards by which\nlower courts should assess the constitutionality of firearms restrictions.\nCHAPTER NINE: The Second Amendment | 493\n\n\x0cb. Analytical Rubric\nLacking more detailed guidance from the Supreme Court, this Circuit has begun to develop a\nframework for determining the constitutionality of firearm restrictions. It requires a two-step inquiry.\nFirst, we consider whether the restriction burdens conduct protected by the Second Amendment. If\nthe challenged restriction does not implicate conduct within the scope of the Second Amendment,\nour analysis ends and the legislation stands. Otherwise, we move to the second step of our inquiry, in\nwhich we must determine and apply the appropriate level of scrutiny.\nThis two-step rubric flows from the dictates of Heller and McDonald and our own precedents in\nKachalsky and Decastro. It also broadly comports with the prevailing two-step approach of other\ncourts, including the Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits, and\nwith the approach used in \xe2\x80\x9cother areas of constitutional law.\xe2\x80\x9d\n\nc. First Step: Whether the Second Amendment Applies\nAs an initial matter, then, we must determine whether the challenged legislation impinges upon\nconduct protected by the Second Amendment. The Second Amendment protects only \xe2\x80\x9cthe sorts of\nweapons\xe2\x80\x9d that are (1) \xe2\x80\x9cin common use\xe2\x80\x9d and (2) \xe2\x80\x9ctypically possessed by law-abiding citizens for lawful\npurposes.\xe2\x80\x9d We consider each requirement in turn.\n\ni. Common Use\nThe parties contest whether the assault weapons at issue here are commonly owned. Plaintiffs argue\nthat the weapons at issue are owned in large numbers by law-abiding Americans. They present\nstatistics showing that nearly four million units of a single assault weapon, the popular AR\xe2\x80\x9315, have\nbeen manufactured between 1986 and March 2013. Plaintiffs further assert that only 7.5 percent of\nassault-weapon owners are active law enforcement officers, and that most owners of assault weapons\nown only one or two such weapons, such that the banned firearms are not concentrated in a small\nnumber of homes, but rather spread widely among the gun-owning public. Defendants counter that\nassault weapons only represent about two percent of the nation\xe2\x80\x99s firearms (admittedly amounting to\napproximately seven million guns). Moreover, defendants argue that the statistics inflate the number\nof individual civilian owners because many of these weapons are purchased by law enforcement or\nsmuggled to criminals, and many civilian gun owners own multiple assault weapons.\nThis much is clear: Americans own millions of the firearms that the challenged legislation prohibits.\nThe same is true of large-capacity magazines, as defined by the New York and Connecticut statutes.\nThough fewer statistics are available for magazines, those statistics suggest that about 25 million\nlarge-capacity magazines were available in 1995, shortly after the federal assault weapons ban was\nenacted, and nearly 50 million such magazines\xe2\x80\x94or nearly two large-capacity magazines for each gun\ncapable of accepting one\xe2\x80\x94were approved for import by 2000.\n494 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cEven accepting the most conservative estimates cited by the parties and by amici, the assault weapons\nand large-capacity magazines at issue are \xe2\x80\x9cin common use\xe2\x80\x9d as that term was used in Heller. The\nD.C. Circuit reached the same conclusion in its well-reasoned decision in Heller II, which upheld the\nconstitutionality of a District of Columbia gun-control act substantially similar to those at issue here.\nTo be sure, as defendants note, these assault weapons and large-capacity magazines are not as\ncommonly owned as the handguns at issue in Heller, which were \xe2\x80\x9cthe most popular weapon chosen\nby Americans for self-defense in the home.\xe2\x80\x9d But nothing in Heller limited its holding to handguns;\nindeed, the Court emphasized that \xe2\x80\x9cthe Second Amendment extends, prima facie, to all instruments\nthat constitute bearable arms,\xe2\x80\x9d not just to a small subset.\n\nii. Typical Possession\nWe must next determine whether assault weapons and large-capacity magazines are \xe2\x80\x9ctypically\npossessed by law-abiding citizens for lawful purposes.\xe2\x80\x9d While \xe2\x80\x9ccommon use\xe2\x80\x9d is an objective and largely\nstatistical inquiry, \xe2\x80\x9ctypical[ ] possess[ion]\xe2\x80\x9d requires us to look into both broad patterns of use and the\nsubjective motives of gun owners.\nThe parties offer competing evidence about these weapons\xe2\x80\x99 \xe2\x80\x9ctypical use.\xe2\x80\x9d Plaintiffs suggest that\nassault weapons are among the safest and most effective firearms for civilian self-defense. Defendants\ndisagree, arguing that these weapons are used disproportionately in gun crimes, rather than for lawful\npursuits like self-defense and hunting.\nEven if defendants are correct, however, the same could be said for the handguns in Heller. Though\nhandguns comprise only about one-third of the nation\xe2\x80\x99s firearms, by some estimates they account\nfor 71 percent to 83 percent of the firearms used in murders and 84 percent to 90 percent of the\nfirearms used in other violent crimes. That evidence of disproportionate criminal use did not prevent\nthe Supreme Court from holding that handguns merited constitutional protection.\nLooking solely at a weapon\xe2\x80\x99s association with crime, then, is insufficient. We must also consider more\nbroadly whether the weapon is \xe2\x80\x9cdangerous and unusual\xe2\x80\x9d in the hands of law-abiding civilians. Heller\nexpressly highlighted \xe2\x80\x9cweapons that are most useful in military service,\xe2\x80\x9d such as the fully automatic\nM\xe2\x80\x9316 rifle, as weapons that could be banned without implicating the Second Amendment. But this\nanalysis is difficult to manage in practice. Because the AR\xe2\x80\x9315 is \xe2\x80\x9cthe civilian version of the military\xe2\x80\x99s\nM\xe2\x80\x9316 rifle,\xe2\x80\x9d defendants urge that it should be treated identically for Second Amendment purposes.\nBut the Supreme Court\xe2\x80\x99s very choice of descriptor for the AR\xe2\x80\x9315\xe2\x80\x94the \xe2\x80\x9ccivilian version\xe2\x80\x9d\xe2\x80\x94could instead\nimply that such guns are \xe2\x80\x9ctraditionally have been widely accepted as lawful.\xe2\x80\x9d\nUltimately, then, neither the Supreme Court\xe2\x80\x99s categories nor the evidence in the record cleanly\nresolves the question of whether semiautomatic assault weapons and large-capacity magazines are\n\xe2\x80\x9ctypically possessed by law-abiding citizens for lawful purposes.\xe2\x80\x9d Confronting this record, Chief Judge\nSkretny reasonably found that reliable empirical evidence of lawful possession for lawful purposes was\n\xe2\x80\x9celusive,\xe2\x80\x9d beyond ownership statistics. We agree.\n\nCHAPTER NINE: The Second Amendment | 495\n\n\x0cIn the absence of clearer guidance from the Supreme Court or stronger evidence in the record, we\nfollow the approach taken by the District Courts and by the D.C. Circuit in Heller II and assume for the\nsake of argument that these \xe2\x80\x9ccommonly used\xe2\x80\x9d weapons and magazines are also \xe2\x80\x9ctypically possessed by\nlaw-abiding citizens for lawful purposes.\xe2\x80\x9d In short, we proceed on the assumption that these laws ban\nweapons protected by the Second Amendment. This assumption is warranted at this stage, because,\nthe statutes at issue nonetheless largely pass constitutional muster.\n\nd. Second Step: Level of Scrutiny\nHaving concluded that the statutes impinge upon Second Amendment rights, we must next determine\nand apply the appropriate level of scrutiny. We employ the familiar \xe2\x80\x9clevels of scrutiny\xe2\x80\x9d analysis\nintroduced in the famous Footnote Four of United States v. Carolene Products Co., and begin by asking\nwhich level of judicial \xe2\x80\x9cscrutiny\xe2\x80\x9d applies.\nThough Heller did not specify the precise level of scrutiny applicable to firearms regulations, it\nrejected mere rational basis review as insufficient for the type of regulation challenged there. At the\nsame time, this Court and our sister Circuits have suggested that heightened scrutiny is not always\nappropriate. In determining whether heightened scrutiny applies, we consider two factors: (1) \xe2\x80\x9chow\nclose the law comes to the core of the Second Amendment right\xe2\x80\x9d and (2) \xe2\x80\x9cthe severity of the law\xe2\x80\x99s\nburden on the right.\xe2\x80\x9d Laws that neither implicate the core protections of the Second Amendment nor\nsubstantially burden their exercise do not receive heightened scrutiny.\n\ni. The Core of the Right\nBy their terms, the statutes at issue implicate the core of the Second Amendment\xe2\x80\x99s protections by\nextending into the home, \xe2\x80\x9cwhere the need for defense of self, family and property is most acute.\xe2\x80\x9d\nSemiautomatic assault weapons and large-capacity magazines are commonly owned by many lawabiding Americans, and their complete prohibition, including within the home, requires us to consider\nthe scope of Second Amendment guarantees \xe2\x80\x9cat their zenith.\xe2\x80\x9d At the same time, the regulated weapons\nare not nearly as popularly owned and used for self-defense as the handgun, that \xe2\x80\x9cquintessential selfdefense weapon.\xe2\x80\x9d Thus these statutes implicate Second Amendment rights, but not to the same extent\nas the laws at issue in Heller and McDonald.\n\nii. The Severity of the Burden\nIn Decastro {United States v. Decastro, 2\n\nnd\n\nCir. 2012} we explained that heightened scrutiny need\n\nnot apply to \xe2\x80\x9cany marginal, incremental or even appreciable restraint on the right to keep and bear\narms.\xe2\x80\x9d Rather, \xe2\x80\x9cheightened scrutiny is triggered only by those restrictions that (like the complete\nprohibition on handguns struck down in Heller) operate as a substantial burden on the ability of\nlaw-abiding citizens to possess and use a firearm for . . . lawful purposes.\xe2\x80\x9d Our later decision in\nKachalsky {v. Cty of Westchester, 2\n\nnd\n\nCir. 2012} confirmed this approach, concluding that \xe2\x80\x9csome form\n\n496 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cof heightened scrutiny would be appropriate\xe2\x80\x9d for regulations that impose a \xe2\x80\x9csubstantial burden\xe2\x80\x9d on\nSecond Amendment rights.\nThe practice of applying heightened scrutiny only to laws that \xe2\x80\x9cburden the Second Amendment right\nsubstantially\xe2\x80\x9d is, as we noted in Decastro, broadly consistent with our approach to other fundamental\nconstitutional rights, including those protected by the First and Fourteenth Amendments. We\ntypically require a threshold showing to trigger heightened scrutiny of laws alleged to implicate\nsuch constitutional contexts as takings, voting rights, and free speech. Though we have historically\nexpressed \xe2\x80\x9chesitan[ce] to import substantive First Amendment principles wholesale into Second\nAmendment jurisprudence,\xe2\x80\x9d we readily \xe2\x80\x9cconsult principles from other areas of constitutional law,\nincluding the First Amendment\xe2\x80\x9d in determining whether a law \xe2\x80\x9csubstantially burdens Second\nAmendment rights.\xe2\x80\x9d\nThe scope of the legislative restriction and the availability of alternatives factor into our analysis\nof the \xe2\x80\x9cdegree to which the challenged law burdens the right.\xe2\x80\x9d No \xe2\x80\x9csubstantial burden\xe2\x80\x9d exists\xe2\x80\x94and\nhence heightened scrutiny is not triggered\xe2\x80\x94\xe2\x80\x9cif adequate alternatives remain for law-abiding citizens\nto acquire a firearm for self-defense.\xe2\x80\x9d\nThe laws at issue are both broad and burdensome. Unlike statutes that \xe2\x80\x9cmerely regulate the manner\nin which persons may exercise their Second Amendment rights,\xe2\x80\x9d these laws impose an outright ban\nstatewide. The \xe2\x80\x9cabsolute prohibition\xe2\x80\x9d instituted in both states thus creates a \xe2\x80\x9cserious encroachment\xe2\x80\x9d\non the Second Amendment right. These statutes are not mere \xe2\x80\x9cmarginal, incremental or even\nappreciable restraint[s] on the right to keep and bear arms.\xe2\x80\x9d They impose a substantial burden on\nSecond Amendment rights and therefore trigger the application of some form of heightened scrutiny.\nHeightened scrutiny need not, however, \xe2\x80\x9cbe akin to strict scrutiny when a law burdens the Second\nAmendment\xe2\x80\x9d\xe2\x80\x94particularly when that burden does not constrain the Amendment\xe2\x80\x99s \xe2\x80\x9ccore\xe2\x80\x9d area of\nprotection. The instant bans are dissimilar from D.C.\xe2\x80\x99s unconstitutional prohibition of \xe2\x80\x9can entire class\nof \xe2\x80\x98arms\xe2\x80\x99 that is overwhelmingly chosen by American society for [the] lawful purpose\xe2\x80\x9d of self-defense.\nNew York and Connecticut have not banned an entire class of arms. Indeed, plaintiffs themselves\nacknowledge that there is no class of firearms known as \xe2\x80\x9csemiautomatic assault weapons\xe2\x80\x9d\xe2\x80\x94a\ndescriptor they call purely political in nature. Plaintiffs nonetheless argue that the legislation does\nprohibit \xe2\x80\x9cfirearms of a universally recognized type\xe2\x80\x94semiautomatic.\xe2\x80\x9d Not so. Rather, both New York\nand Connecticut ban only a limited subset of semiautomatic firearms, which contain one or more\nenumerated military-style features. As Heller makes plain, the fact that the statutes at issue do\nnot ban \xe2\x80\x9can entire class of \xe2\x80\x98arms\xe2\x80\x99 \xe2\x80\x9d makes the restrictions substantially less burdensome. In both\nstates, citizens may continue to arm themselves with non-semiautomatic weapons or with any\nsemiautomatic gun that does not contain any of the enumerated military-style features. Similarly,\nwhile citizens may not acquire high-capacity magazines, they can purchase any number of magazines\nwith a capacity of ten or fewer rounds. In sum, numerous \xe2\x80\x9calternatives remain for law-abiding citizens\nto acquire a firearm for self-defense.\xe2\x80\x9d We agree with the D.C. Circuit that \xe2\x80\x9cthe prohibition of semiautomatic rifles and large-capacity magazines does not effectively disarm individuals or substantially\naffect their ability to defend themselves.\xe2\x80\x9d The burden imposed by the challenged legislation is real, but\nit is not \xe2\x80\x9csevere.\xe2\x80\x9d\n\nCHAPTER NINE: The Second Amendment | 497\n\n\x0cAccordingly, we conclude that intermediate, rather than strict, scrutiny is appropriate. This\nconclusion coheres not only with that reached by the D.C. Circuit when considering substantially\nsimilar gun-control laws, but also with the analyses undertaken by other courts, many of which have\napplied intermediate scrutiny to laws implicating the Second Amendment.\n\ne. Application of Intermediate Scrutiny\nThough \xe2\x80\x9cintermediate scrutiny\xe2\x80\x9d may have different connotations in different contexts, here the key\nquestion is whether the statutes at issue are \xe2\x80\x9csubstantially related to the achievement of an important\ngovernmental interest.\xe2\x80\x9d It is beyond cavil that both states have \xe2\x80\x9csubstantial, indeed compelling,\ngovernmental interests in public safety and crime prevention.\xe2\x80\x9d We need only inquire, then, whether\nthe challenged laws are \xe2\x80\x9csubstantially related\xe2\x80\x9d to the achievement of that governmental interest. We\nconclude that the prohibitions on semiautomatic assault weapons and large-capacity magazines meet\nthis standard.\n\ni. Prohibition on \xe2\x80\x9cAssault Weapons\xe2\x80\x9d\nTo survive intermediate scrutiny, the \xe2\x80\x9cfit between the challenged regulation [and the government\ninterest] need only be substantial, not perfect.\xe2\x80\x9d Unlike strict scrutiny analysis, we need not ensure\nthat the statute is \xe2\x80\x9cnarrowly tailored\xe2\x80\x9d or the \xe2\x80\x9cleast restrictive available means to serve the stated\ngovernmental interest.\xe2\x80\x9d Moreover, we have observed that state regulation of the right to bear arms\n\xe2\x80\x9chas always been more robust\xe2\x80\x9d than analogous regulation of other constitutional rights. So long as the\ndefendants produce evidence that \xe2\x80\x9cfairly support[s]\xe2\x80\x9d their rationale, the laws will pass constitutional\nmuster.\nIn making this determination, we afford \xe2\x80\x9csubstantial deference to the predictive judgments of the\nlegislature.\xe2\x80\x9d We remain mindful that, \xe2\x80\x9c[i]n the context of firearm regulation, the legislature is \xe2\x80\x98far\nbetter equipped than the judiciary\xe2\x80\x99 to make sensitive public policy judgments (within constitutional\nlimits) concerning the dangers in carrying firearms and the manner to combat those risks.\xe2\x80\x9d Our\nrole, therefore, is only to assure ourselves that, in formulating their respective laws, New York and\nConnecticut have \xe2\x80\x9cdrawn reasonable inferences based on substantial evidence.\xe2\x80\x9d\nBoth states have done so with respect to their prohibitions on certain semiautomatic firearms.\nAt least since the enactment of the federal assault-weapons ban, semiautomatic assault weapons\nhave been understood to pose unusual risks. When used, these weapons tend to result in more\nnumerous wounds, more serious wounds, and more victims. These weapons are disproportionately\nused in crime, and particularly in criminal mass shootings like the attack in Newtown. They are also\ndisproportionately used to kill law enforcement officers: one study shows that between 1998 and 2001,\nassault weapons were used to gun down at least twenty percent of officers killed in the line of duty.\nThe record reveals that defendants have tailored the legislation at issue to address these particularly\nhazardous weapons. The dangers posed by some of the military-style features prohibited by the\n498 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cstatutes\xe2\x80\x94such as grenade launchers and silencers\xe2\x80\x94are manifest and incontrovertible. As for the\nother enumerated military-style features\xe2\x80\x94such as the flash suppressor, protruding grip, and barrel\nshrouds\xe2\x80\x94New York and Connecticut have determined, as did the U.S. Congress, that the \xe2\x80\x9cnet effect\nof these military combat features is a capability for lethality\xe2\x80\x94more wounds, more serious, in more\nvictims\xe2\x80\x94far beyond that of other firearms in general, including other semiautomatic guns.\xe2\x80\x9d Indeed,\nplaintiffs explicitly contend that these features improve a firearm\xe2\x80\x99s \xe2\x80\x9caccuracy,\xe2\x80\x9d \xe2\x80\x9ccomfort,\xe2\x80\x9d and \xe2\x80\x9cutility.\xe2\x80\x9d\nThis circumlocution is, as Chief Judge Skretny observed, a milder way of saying that these features\nmake the weapons more deadly.\nThe legislation is also specifically targeted to prevent mass shootings like that in Newtown, in which\nthe shooter used a semiautomatic assault weapon. Plaintiffs complain that mass shootings are\n\xe2\x80\x9cparticularly rare events\xe2\x80\x9d and thus, even if successful, the legislation will have a \xe2\x80\x9cminimal impact\xe2\x80\x9d on\nmost violent crime. That may be so. But gun-control legislation \xe2\x80\x9cneed not strike at all evils at the same\ntime\xe2\x80\x9d to be constitutional.\nDefendants also have adduced evidence that the regulations will achieve their intended end of\nreducing circulation of assault weapons among criminals. Plaintiffs counter\xe2\x80\x94without record\nevidence\xe2\x80\x94that the statutes will primarily disarm law-abiding citizens and will thus impair the very\npublic-safety objectives they were designed to achieve. Given the dearth of evidence that law-abiding\ncitizens typically use these weapons for self-defense, plaintiffs\xe2\x80\x99 concerns are speculative at best, and\ncertainly not strong enough to overcome the \xe2\x80\x9csubstantial deference\xe2\x80\x9d we owe to \xe2\x80\x9cpredictive judgments\nof the legislature\xe2\x80\x9d on matters of public safety. The mere possibility that some subset of people intent\non breaking the law will indeed ignore these statutes does not make them unconstitutional.\nUltimately, \xe2\x80\x9c[i]t is the legislature\xe2\x80\x99s job, not ours, to weigh conflicting evidence and make policy\njudgments.\xe2\x80\x9d We must merely ensure that the challenged laws are substantially\xe2\x80\x94even if not\nperfectly\xe2\x80\x94related to the articulated governmental interest. The prohibition of semiautomatic assault\nweapons passes this test.\n\nii. Prohibition on Large\xe2\x80\x93Capacity Magazines\nThe same logic applies a fortiori to the restrictions on large-capacity magazines. The record evidence\nsuggests that large-capacity magazines may \xe2\x80\x9cpresent even greater dangers to crime and violence\nthan assault weapons alone, in part because they are more prevalent and can be and are used in\nboth assault weapons and non-assault weapons.\xe2\x80\x9d Large-capacity magazines are disproportionately\nused in mass shootings, like the one in Newtown, in which the shooter used multiple large-capacity\nmagazines to fire 154 rounds in less than five minutes. Like assault weapons, large-capacity magazines\nresult in \xe2\x80\x9cmore shots fired, persons wounded, and wounds per victim than do other gun attacks.\xe2\x80\x9d\nProfessor Christopher Koper, a firearms expert relied upon by all parties in both states, stated that it\nis \xe2\x80\x9cparticularly\xe2\x80\x9d the ban on large-capacity magazines that has the greatest \xe2\x80\x9cpotential to prevent and\nlimit shootings in the state over the long-run.\xe2\x80\x9d\nWe therefore conclude that New York and Connecticut have adequately established a substantial\nrelationship between the prohibition of both semiautomatic assault weapons and large-capacity\nCHAPTER NINE: The Second Amendment | 499\n\n\x0cmagazines and the important\xe2\x80\x94indeed, compelling\xe2\x80\x94state interest in controlling crime. These\nprohibitions survive intermediate scrutiny.\n\niii. Seven\xe2\x80\x93Round Load Limit\nThough the key provisions of both statutes pass constitutional muster on this record, another aspect\nof New York\xe2\x80\x99s SAFE Act does not: the seven-round load limit, which makes it \xe2\x80\x9cunlawful for a person to\nknowingly possess an ammunition feeding device where such device contains more than seven rounds\nof ammunition.\xe2\x80\x9d\nAs noted above, the seven-round load limit was a second-best solution. New York determined that\nonly magazines containing seven rounds or fewer can be safely possessed, but it also recognized\nthat seven-round magazines are difficult to obtain commercially. Its compromise was to permit gun\nowners to use ten-round magazines if they were loaded with seven or fewer rounds.\nOn the record before us, we cannot conclude that New York has presented sufficient evidence that\na seven-round load limit would best protect public safety. Here we are considering not a capacity\nrestriction, but rather a load limit. Nothing in the SAFE Act will outlaw or reduce the number of tenround magazines in circulation. It will not decrease their availability or in any way frustrate the access\nof those who intend to use ten-round magazines for mass shootings or other crimes. It is thus entirely\nuntethered from the stated rationale of reducing the number of assault weapons and large capacity\nmagazines in circulation. New York has failed to present evidence that the mere existence of this load\nlimit will convince any would-be malefactors to load magazines capable of holding ten rounds with\nonly the permissible seven.\nTo be sure, the mere possibility of criminal disregard of the laws does not foreclose an attempt by\nthe state to enact firearm regulations. But on intermediate scrutiny review, the state cannot \xe2\x80\x9cget\naway with shoddy data or reasoning.\xe2\x80\x9d To survive intermediate scrutiny, the defendants must show\n\xe2\x80\x9creasonable inferences based on substantial evidence\xe2\x80\x9d that the statutes are substantially related to the\ngovernmental interest. With respect to the load limit provision alone, New York has failed to do so.\n\nVI.\nVagueness Challenge\n{omitted}\n\nCONCLUSION\nTo summarize, we hold as follows:\n\n500 | Liberty, Equality, and Due Process: Third Edition\n\n\x0c(1) The core prohibitions by New York and Connecticut of assault weapons and large-capacity\nmagazines do not violate the Second Amendment.\n(a) We assume that the majority of the prohibited conduct falls within the scope of Second\nAmendment protections. The statutes are appropriately evaluated under the constitutional standard\nof \xe2\x80\x9cintermediate scrutiny\xe2\x80\x9d\xe2\x80\x94that is, whether they are \xe2\x80\x9csubstantially related to the achievement of an\nimportant governmental interest.\xe2\x80\x9d\n(b) Because the prohibitions are substantially related to the important governmental interests of\npublic safety and crime reduction, they pass constitutional muster.\nWe therefore AFFIRM the relevant portions of the judgments of the Western District of New York\nand the District of Connecticut insofar as they upheld the constitutionality of state prohibitions on\nsemiautomatic assault weapons and large-capacity magazines.\n(2) We hold that the specific prohibition on the non-semiautomatic Remington 7615 falls within the\nscope of Second Amendment protection and subsequently fails intermediate scrutiny. Accordingly,\nwe REVERSE that limited portion of the judgment of the District of Connecticut. In doing so, we\nemphasize the limited nature of our holding with respect to the Remington 7615, in that it merely\nreflects the presumption required by the Supreme Court in District of Columbia v. Heller that the\nSecond Amendment extends to all bearable arms, and that the State, by failing to present any\nargument at all regarding this weapon or others like it, has failed to rebut that presumption. We do not\nforeclose the possibility that States could in the future present evidence to support such a prohibition.\n(3) New York\xe2\x80\x99s seven-round load limit does not survive intermediate scrutiny in the absence of\nrequisite record evidence and a substantial relationship between the statutory provision and\nimportant state safety interests. We therefore AFFIRM the judgment of the Western District of New\nYork insofar as it held this provision unconstitutional.\n(4) No challenged provision in either statute is unconstitutionally vague. Accordingly, we AFFIRM the\njudgments of the District of Connecticut and the Western District of New York insofar as they denied\nvagueness challenges to provisions involving the capacity of tubular magazines, \xe2\x80\x9ccopies or duplicates,\xe2\x80\x9d\nor a firearm\xe2\x80\x99s ability to \xe2\x80\x9cbe readily restored or converted.\xe2\x80\x9d We REVERSE the judgment of the Western\nDistrict of New York insofar as it found language pertaining to \xe2\x80\x9cversions\xe2\x80\x9d and \xe2\x80\x9cmuzzle breaks\xe2\x80\x9d to be\nunconstitutionally vague.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=42#h5p-9\n\nCHAPTER NINE: The Second Amendment | 501\n\n\x0cNotes\n1. Be prepared to discuss the holdings of Heller and McDonald. Pay attention to the chronological\nsequence of cases. Why would Second Amendment advocates advance the claims in Heller before\nthose in McDonald?\n2. Like McDonald, Heller has extensive opinions totaling over 150 pages and our version is again heavily\nedited. Do you agree with the majority\xe2\x80\x99s textual reading of the Second Amendment? Can you tell what\nthe contrary interpretation would be?\n3. Be prepared to apply the \xe2\x80\x9canalytic rubric\xe2\x80\x9d of the Second Circuit in New York State Rifle and Pistol\nAss\xe2\x80\x99n v. Cuomo to any regulation.\n\nNote: New York State Rifle and Pistol Ass\xe2\x80\x99n v. City of New York\nIn the 2019-2020 Term, the United States Supreme Court granted certiorari to another Second Circuit\nopinion applying the settled \xe2\x80\x9canalytic framework\xe2\x80\x9d to a New York City gun regulation. New York State\nRifle & Pistol Ass\xe2\x80\x99n, Inc. v. City of New York, 883 F.3d 45 (2d Cir. 2018), cert. granted New York State Rifle\n& Pistol Ass\xe2\x80\x99n, Inc. v. City of New York, N.Y., ___ U.S.___, 139 S. Ct. 939, 203 L. Ed. 2d 130 (2019).\nThe regulation at issue in New York State Rifle & Pistol v. City of New York was part of the New York\nCity gun licensing scheme, Title 38, Chapter Five, Section 23 of the Rules of the City of New York\n(\xe2\x80\x9cRCNY\xe2\x80\x9d), under which an individual with a \xe2\x80\x9cpremises license\xe2\x80\x9d for a handgun may not remove the\nhandgun \xe2\x80\x9cfrom the address specified on the license except as otherwise provided in this chapter.\xe2\x80\x9d\n38 RCNY \xc2\xa7 5-23(a)(1). Under Rule 5-23 (\xe2\x80\x9cthe Rule\xe2\x80\x9d), the licensee \xe2\x80\x9cmay transport her/his handgun(s)\ndirectly to and from an authorized small arms range/shooting club, unloaded, in a locked container,\nthe ammunition to be carried separately.\xe2\x80\x9d Id. \xc2\xa7 5-23(a)(3). The New York Police Department\xe2\x80\x93License\nDivision (\xe2\x80\x9cLicense Division\xe2\x80\x9d) has defined \xe2\x80\x9cauthorized\xe2\x80\x9d facilities, among other requirements, to be\n\xe2\x80\x9cthose located in New York City.\xe2\x80\x9d The Plaintiffs sought to remove handguns from the licensed premises\nfor the purposes of going to shooting ranges and engaging in target practice outside New York City as\nwell as, in the case of one Plaintiff, transporting the handgun to a second home in upstate New York.\nThe Second Circuit upheld the constitutionality of the rule, applying intermediate scrutiny because\nthe burden was not substantial, reasoning that one could obtain a gun at the firing range or obtain a\nlicense in the location of the second home for a second gun. The Second Circuit concluded that the\nRule makes a contribution to an important state interest in public safety substantial enough to easily\njustify the insignificant and indirect costs it imposes on Second Amendment interests.\nThe Second Circuit also held that the New York City rule did not violate the right to interstate travel\n(or the Commerce Clause).\nAfter the United States Supreme Court granted certiorari, New York City amended its rule, effective\nJuly 21, 2019, see https://rules.cityofnewyork.us/content/premise-handgun-license-amendment.\n\n502 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cThe amended rule added specific language to provide that owners of a premises license for a handgun\nmay transport the licensed firearm to\n(i) Another residence or place of business where the licensee is authorized to possess such\nhandgun.\n(ii) A small arms range/shooting club authorized by law to operate as such. Such range or club\nmay be within or outside New York City.\n(iii) A shooting competition at which the licensee is authorized to possess such handgun\nconsistent with the law applicable at the place of such competition.\nIn a brief per curiam opinion, the Court held that given the New York City amended rule, the \xe2\x80\x9cclaim\nfor declaratory and injunctive relief with respect to the City\xe2\x80\x99s old rule is therefore moot,\xe2\x80\x9d New York\nState Rifle & Pistol Ass\xe2\x80\x99n, Inc. v. City of New York, New York, 590 U.S. ___, 140 S. Ct. 1525, 206 L. Ed.\n2d 798 (2020). The Court did remand for consideration of whether a damages claim could be added.\nJustice Alito dissented, joined by Justice Gorsuch and in part by Justice Thomas.\n\nCHAPTER NINE: The Second Amendment | 503\n\n\x0cCHAPTER TEN: Unenumerated Rights and\nDue Process\nLochner v. New York\n198 U.S. 45 (1905)\nPECKHAM, J., FOR THE COURT, JOINED BY FULLER, C.J., AND BREWER, BROWN, AND MCKENNA, J.J. HARLAN, J.,\nDISSENTING JOINED BY WHITE AND DAY, J.J. HOLMES, J., DISSENTING.\nPECKHAM, J., FOR THE COURT.\nThe indictment, it will be seen, charges that the plaintiff in error violated the 110th section of article 8,\nchapter 415, of the Laws of 1897, known as the labor law of the state of New York, in that he wrongfully\nand unlawfully required and permitted an employee working for him to work more than sixty hours in\none week. There is nothing in any of the opinions delivered in this case, either in the supreme court or\nthe court of appeals of the state, which construes the section, in using the word \xe2\x80\x98required,\xe2\x80\x99 as referring\nto any physical force being used to obtain the labor of an employee. It is assumed that the word means\nnothing more than the requirement arising from voluntary contract for such labor in excess of the\nnumber of hours specified in the statute. * * * * It is not an act merely fixing the number of hours\nwhich shall constitute a legal day\xe2\x80\x99s work, but an absolute prohibition upon the employer permitting,\nunder any circumstances, more than ten hours\xe2\x80\x99 work to be done in his establishment. The employee\nmay desire to earn the extra money which would arise from his working more than the prescribed\ntime, but this statute forbids the employer from permitting the employee to earn it.\nThe statute necessarily interferes with the right of contract between the employer and employees,\nconcerning the number of hours in which the latter may labor in the bakery of the employer. The\ngeneral right to make a contract in relation to his business is part of the liberty of the individual\nprotected by the 14th Amendment of the Federal Constitution. Under that provision no state can\ndeprive any person of life, liberty, or property without due process of law. The right to purchase or\nto sell labor is part of the liberty protected by this amendment, unless there are circumstances which\nexclude the right. There are, however, certain powers, existing in the sovereignty of each state in the\nUnion, somewhat vaguely termed police powers, the exact description and limitation of which have\nnot been attempted by the courts. Those powers, broadly stated, and without, at present, any attempt\nat a more specific limitation, relate to the safety, health, morals, and general welfare of the public.\nBoth property and liberty are held on such reasonable conditions as may be imposed by the governing\npower of the state in the exercise of those powers, and with such conditions the 14th Amendment was\nnot designed to interfere.\n* * * * {W}hen the state, by its legislature, in the assumed exercise of its police powers, has passed\n504 | CHAPTER TEN: Unenumerated Rights and Due Process\n\n\x0can act which seriously limits the right to labor or the right of contract in regard to their means\nof livelihood between persons who are sui juris (both employer and employee), it becomes of great\nimportance to determine which shall prevail,-the right of the individual to labor for such time as he\nmay choose, or the right of the state to prevent the individual from laboring, or from entering into any\ncontract to labor, beyond a certain time prescribed by the state. * * * *\nThe latest case decided by this court, involving the police power, is that of Jacobson v. Massachusetts\n(1905) * * * * related to compulsory vaccination, and the law was held vaild as a proper exercise of the\npolice powers with reference to the public health. It was stated in the opinion that it was a case \xe2\x80\x98of\nan adult who, for aught that appears, was himself in perfect health and a fit subject of vaccination,\nand yet, while remaining in the community, refused to obey the statute and the regulation, adopted in\nexecution of its provisions, for the protection of the public health and the public safety, confessedly\nendangered by the presence of a dangerous disease.\xe2\x80\x99 That case is also far from covering the one now\nbefore the court.\n* * * * It must, of course, be conceded that there is a limit to the valid exercise of the police power\nby the state. There is no dispute concerning this general proposition. Otherwise the 14th Amendment\nwould have no efficacy and the legislatures of the states would have unbounded power, and it would\nbe enough to say that any piece of legislation was enacted to conserve the morals, the health, or the\nsafety of the people; such legislation would be valid, no matter how absolutely without foundation the\nclaim might be. The claim of the police power would be a mere pretext, \xe2\x80\x93 become another and delusive\nname for the supreme sovereignty of the state to be exercised free from constitutional restraint. This\nis not contended for. In every case that comes before this court, therefore, where legislation of this\ncharacter is concerned, and where the protection of the Federal Constitution is sought, the question\nnecessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state,\nor is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to\nhis personal liberty, or to enter into those contracts in relation to labor which may seem to him\nappropriate or necessary for the support of himself and his family? Of course the liberty of contract\nrelating to labor includes both parties to it. The one has as much right to purchase as the other to sell\nlabor.\nThis is not a question of substituting the judgment of the court for that of the legislature. If the act be\nwithin the power of the state it is valid, although the judgment of the court might be totally opposed\nto the enactment of such a law. But the question would still remain: Is it within the police power of\nthe state? and that question must be answered by the court.\nThe question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words.\nThere is no reasonable ground for interfering with the liberty of person or the right of free contract,\nby determining the hours of labor, in the occupation of a baker. There is no contention that bakers\nas a class are not equal in intelligence and capacity to men in other trades or manual occupations, or\nthat they are not able to assert their rights and care for themselves without the protecting arm of the\nstate, interfering with their independence of judgment and of action. They are in no sense wards of the\nstate. Viewed in the light of a purely labor law, with no reference whatever to the question of health,\nwe think that a law like the one before us involves neither the safety, the morals, nor the welfare, of\nthe public, and that the interest of the public is not in the slightest degree affected by such an act.\nCHAPTER TEN: Unenumerated Rights and Due Process | 505\n\n\x0cThe law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the\noccupation of a baker. It does not affect any other portion of the public than those who are engaged in\nthat occupation. Clean and wholesome bread does not depend upon whether the baker works but ten\nhours per day or only sixty hours a week. The limitation of the hours of labor does not come within\nthe police power on that ground.\nIt is a question of which of two powers or rights shall prevail,-the power of the state to legislate or\nthe right of the individual to liberty of person and freedom of contract. The mere assertion that the\nsubject relates, though but in a remote degree, to the public health, does not necessarily render the\nenactment valid. The act must have a more direct relation, as a means to an end, and the end itself\nmust be appropriate and legitimate, before an act can be held to be valid which interferes with the\ngeneral right of an individual to be free in his person and in his power to contract in relation to his\nown labor.\n* * * * We think the limit of the police power has been reached and passed in this case. There is, in our\njudgment, no reasonable foundation for holding this to be necessary or appropriate as a health law\nto safeguard the public health, or the health of the individuals who are following the trade of a baker.\nIf this statute be valid, and if, therefore, a proper case is made out in which to deny the right of an\nindividual, sui juris, as employer or employee, to make contracts for the labor of the latter under the\nprotection of the provisions of the Federal Constitution, there would seem to be no length to which\nlegislation of this nature might not go. * * * * We think that there can be no fair doubt that the trade of\na baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature\nto interfere with the right to labor, and with the right of free contract on the part of the individual,\neither as employer or employee In looking through statistics regarding all trades and occupations,\nit may be true that the trade of a baker does not appear to be as healthy as some other trades, and\nis also vastly more healthy than still others. To the common understanding the trade of a baker has\nnever been regarded as an unhealthy one. Very likely physicians would not recommend the exercise of\nthat or of any other trade as a remedy for ill health. Some occupations are more healthy than others,\nbut we think there are none which might not come under the power of the legislature to supervise\nand control the hours of working therein, if the mere fact that the occupation is not absolutely and\nperfectly healthy is to confer that right upon the legislative department of the government. It might\nbe safely affirmed that almost all occupations more or less affect the health. There must be more than\nthe mere fact of the possible existence of some small amount of unhealthiness to warrant legislative\ninterference with liberty. It is unfortunately true that labor, even in any department, may possibly\ncarry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative\nmajorities? A printer, a tinsmith, a locksmith, a carpenter, a cabinetmaker, a dry goods clerk, a bank\xe2\x80\x99s,\na lawyer\xe2\x80\x99s, or a physician\xe2\x80\x99s clerk, or a clerk in almost any kind of business, would all come under the\npower of the legislature, on this assumption. No trade, no occupation, no mode of earning one\xe2\x80\x99s living,\ncould escape this all-pervading power, and the acts of the legislature in limiting the hours of labor\nin all employments would be valid, although such limitation might seriously cripple the ability of the\nlaborer to support himself and his family. In our large cities there are many buildings into which the\nsun penetrates for but a short time in each day, and these buildings are occupied by people carrying\non the business of bankers, brokers, lawyers, real estate, and many other kinds of business, aided\nby many clerks, messengers, and other employees. Upon the assumption of the validity of this act\n506 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cunder review, it is not possible to say that an act, prohibiting lawyers\xe2\x80\x99 or bank clerks, or others, from\ncontracting to labor for their employers more than eight hours a day would be invalid. It might be\nsaid that it is unhealthy to work more than that number of hours in an apartment lighted by artificial\nlight during the working hours of the day; that the occupation of the bank clerk, the lawyer\xe2\x80\x99s clerk, the\nreal estate clerk, or the broker\xe2\x80\x99s clerk, in such offices is therefore unhealthy, and the legislature, in its\npaternal wisdom, must, therefore, have the right to legislate on the subject of, and to limit, the hours\nfor such labor; and, if it exercises that power, and its validity be questioned, it is sufficient to say, it\nhas reference to the public health; it has reference to the health of the employees condemned to labor\nday after day in buildings where the sun never shines; it is a health law, and therefore it is valid, and\ncannot be questioned by the courts.\nIt is also urged, pursuing the same line of argument, that it is to the interest of the state that its\npopulation should be strong and robust, and therefore any legislation which may be said to tend to\nmake people healthy must be valid as health laws, enacted under the police power. If this be a valid\nargument and a justification for this kind of legislation, it follows that the protection of the Federal\nConstitution from undue interference with liberty of person and freedom of contract is visionary,\nwherever the law is sought to be justified as a valid exercise of the police power. Scarcely any law\nbut might find shelter under such assumptions, and conduct, properly so called, as well as contract,\nwould come under the restrictive sway of the legislature. Not only the hours of employees, but the\nhours of employers, could be regulated, and doctors, lawyers, scientists, all professional men, as well\nas athletes and artisans, could be forbidden to fatigue their brains and bodies by prolonged hours of\nexercise, lest the fighting strength of the state be impaired. We mention these extreme cases because\nthe contention is extreme. We do not believe in the soundness of the views which uphold this law.\nOn the contrary, we think that such a law as this, although passed in the assumed exercise of the\npolice power, and as relating to the public health, or the health of the employees named, is not within\nthat power, and is invalid. The act is not, within any fair meaning of the term, a health law, but is an\nillegal interference with the rights of individuals, both employers and employees, to make contracts\nregarding labor upon such terms as they may think best, or which they may agree upon with the other\nparties to such contracts. * * * *\nIt was further urged on the argument that restricting the hours of labor in the case of bakers was\nvalid because it tended to cleanliness on the part of the workers, as a man was more apt to be cleanly\nwhen not overworked, and if cleanly then his \xe2\x80\x98output\xe2\x80\x99 was also more likely to be so. What has already\nbeen said applies with equal force to this contention. We do not admit the reasoning to be sufficient\nto justify the claimed right of such interference. The state in that case would assume the position\nof a supervisor, or pater familias, over every act of the individual, and its right of governmental\ninterference with his hours of labor, his hours of exercise, the character thereof, and the extent to\nwhich it shall be carried would be recognized and upheld. In our judgment it is not possible in fact\nto discover the connection between the number of hours a baker may work in the bakery and the\nhealthful quality of the bread made by the workman. The connection, if any exist, is too shadowy\nand thin to build any argument for the interference of the legislature. If the man works ten hours\na day it is all right, but if ten and a half or eleven his health is in danger and his bread may be\nunhealthy, and, therefore, he shall not be permitted to do it. This, we think, is unreasonable and\nentirely arbitrary. When assertions such as we have adverted to become necessary in order to give, if\nCHAPTER TEN: Unenumerated Rights and Due Process | 507\n\n\x0cpossible, a plausible foundation for the contention that the law is a \xe2\x80\x98health law,\xe2\x80\x99 it gives rise to at least a\nsuspicion that there was some other motive dominating the legislature than the purpose to subserve\nthe public health or welfare.\nThis interference on the part of the legislatures of the several states with the ordinary trades and\noccupations of the people seems to be on the increase. * * * *\nIt is impossible for us to shut our eyes to the fact that many of the laws of this character, while\npassed under what is claimed to be the police power for the purpose of protecting the public health\nor welfare, are, in reality, passed from other motives. * * * * It seems to us that the real object and\npurpose were simply to regulate the hours of labor between the master and his employees (all being\nmen, Sui juris), in a private business, not dangerous in any degree to morals, or in any real and\nsubstantial degree to the health of the employees. Under such circumstances the freedom of master\nand employee to contract with each other in relation to their employment, and in defining the same,\ncannot be prohibited or interfered with, without violating the Federal Constitution.\nThe judgment of the Court of Appeals of New York, as well as that of the Supreme Court and of the\nCounty Court of Oneida County, must be reversed and the case remanded to the County Court for\nfurther proceedings not inconsistent with this opinion.\nREVERSED.\nMR. JUSTICE HOLMES DISSENTING:\nI regret sincerely that I am unable to agree with the judgment in this case, and that I think it my duty\nto express my dissent.\nThis case is decided upon an economic theory which a large part of the country does not entertain.\nIf it were a question whether I agreed with that theory, I should desire to study it further and long\nbefore making up my mind. But I do not conceive that to be my duty, because I strongly believe that my\nagreement or disagreement has nothing to do with the right of a majority to embody their opinions in\nlaw. It is settled by various decisions of this court that state constitutions and state laws may regulate\nlife in many ways which we as legislators might think as injudicious, or if you like as tyrannical, as\nthis, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws\nare ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to\ndo as he likes so long as he does not interfere with the liberty of others to do the same, which has\nbeen a shibboleth for some well-known writers, is interfered with by school laws, by the Postoffice, by\nevery state or municipal institution which takes his money for purposes thought desirable, whether\nhe likes it or not. The 14th Amendment does not enact Mr. Herbert Spencer\xe2\x80\x99s Social Statics. The other\nday we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts. * * * * Two years ago\nwe upheld the prohibition of sales of stock on margins, or for future delivery, in the Constitution of\nCalifornia. Otis v. Parker (1903). The decision sustaining an eight-hour law for miners is still recent.\nHolden v. Hardy (1898). Some of these laws embody convictions or prejudices which judges are likely\nto share. Some may not. But a Constitution is not intended to embody a particular economic theory,\nwhether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made\n508 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cfor people of fundamentally differing views, and the accident of our finding certain opinions natural\nand familiar, or novel, and even shocking, ought not to conclude our judgment upon the question\nwhether statutes embodying them conflict with the Constitution of the United States.\nGeneral propositions do not decide concrete cases. The decision will depend on a judgment or\nintuition more subtle than any articulate major premise. But I think that the proposition just stated,\nif it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that\nthe word \xe2\x80\x98liberty,\xe2\x80\x99 in the 14th Amendment, is perverted when it is held to prevent the natural outcome\nof a dominant opinion, unless it can be said that a rational and fair man necessarily would admit\nthat the statute proposed would infringe fundamental principles as they have been understood by\nthe traditions of our people and our law. It does not need research to show that no such sweeping\ncondemnation can be passed upon the statute before us. A reasonable man might think it a proper\nmeasure on the score of health. Men whom I certainly could not pronounce unreasonable would\nuphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect\nit would be open to the charge of inequality I think it unnecessary to discuss.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=43#h5p-13\n\nMeyer v. Nebraska\n262 U.S. 390 (1923)\nMR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT.\nPlaintiff in error was tried and convicted in the district court for Hamilton county, Nebraska, under\nan information which charged that on May 25, 1920, while an instructor in Zion Parochial School he\nunlawfully taught the subject of reading in the German language to Raymond Parpart, a child of 10\nyears, who had not attained and successfully passed the eighth grade. The information is based upon\n\xe2\x80\x98An act relating to the teaching of foreign languages in the state of Nebraska,\xe2\x80\x99 approved April 9, 1919\n(Laws 1919, c. 249), which follows:\n\xe2\x80\x98Section 1. No person, individually or as a teacher, shall, in any private, denominational,\n\nCHAPTER TEN: Unenumerated Rights and Due Process | 509\n\n\x0cparochial or public school, teach any subject to any person in any language than the English\nlanguage.\n\xe2\x80\x98Sec. 2. Languages, other than the English language, may be taught as languages only after a\npupil shall have attained and successfully passed the eighth grade as evidenced by a certificate\nof graduation issued by the county superintendent of the county in which the child resides.\n\xe2\x80\x98Sec. 3. Any person who violates any of the provisions of this act shall be deemed guilty of\na misdemeanor and upon conviction, shall be subject to a fine of not less than twenty-five\ndollars ($25), nor more than one hundred dollars ($100), or be confined in the county jail for\nany period not exceeding thirty days for each offense.\n\xe2\x80\x98Sec. 4. Whereas, an emergency exists, this act shall be in force from and after its passage and\napproval.\xe2\x80\x99\nThe Supreme Court of the state affirmed the judgment of conviction. * * * *\nThe problem for our determination is whether the statute as construed and applied unreasonably\ninfringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment: \xe2\x80\x98No state \xe2\x80\xa6\nshall deprive any person of life, liberty or property without due process of law.\xe2\x80\x99\nWhile this court has not attempted to define with exactness the liberty thus guaranteed, the term has\nreceived much consideration and some of the included things have been definitely stated. Without\ndoubt, it denotes not merely freedom from bodily restraint but also the right of the individual\nto contract, to engage in any of the common occupations of life, to acquire useful knowledge, to\nmarry, establish a home and bring up children, to worship God according to the dictates of his own\nconscience, and generally to enjoy those privileges long recognized at common law as essential to\nthe orderly pursuit of happiness by free men. The established doctrine is that this liberty may not\nbe interfered with, under the guise of protecting the public interest, by legislative action which is\narbitrary or without reasonable relation to some purpose within the competency of the state to effect.\nDetermination by the Legislature of what constitutes proper exercise of police power is not final or\nconclusive but is subject to supervision by the courts.\nThe American people have always regarded education and acquisition of knowledge as matters of\nsupreme importance which should be diligently promoted. * * * * Corresponding to the right of\ncontrol, it is the natural duty of the parent to give his children education suitable to their station in\nlife; and nearly all the states, including Nebraska, enforce this obligation by compulsory laws.\nPractically, education of the young is only possible in schools conducted by especially qualified\npersons who devote themselves thereto. The calling always has been regarded as useful and\nhonorable, essential, indeed, to the public welfare. Mere knowledge of the German language cannot\nreasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and\ndesirable. Plaintiff in error taught this language in school as part of his occupation. His right thus to\nteach and the right of parents to engage him so to instruct their children, we think, are within the\nliberty of the amendment.\n\n510 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cThe challenged statute forbids the teaching in school of any subject except in English; also the\nteaching of any other language until the pupil has attained and successfully passed the eighth grade,\nwhich is not usually accomplished before the age of twelve. The Supreme Court of the state has held\nthat \xe2\x80\x98the so-called ancient or dead languages\xe2\x80\x99 are not \xe2\x80\x98within the spirit or the purpose of the act.\xe2\x80\x99 Latin,\nGreek, Hebrew are not proscribed; but German, French, Spanish, Italian, and every other alien speech\nare within the ban. Evidently the Legislature has attempted materially to interfere with the calling of\nmodern language teachers, with the opportunities of pupils to acquire knowledge, and with the power\nof parents to control the education of their own.\nIt is said the purpose of the legislation was to promote civic development by inhibiting training\nand education of the immature in foreign tongues and ideals before they could learn English and\nacquire American ideals, and \xe2\x80\x98that the English language should be and become the mother tongue\nof all children reared in this state.\xe2\x80\x99 It is also affirmed that the foreign born population is very large,\nthat certain communities commonly use foreign words, follow foreign leaders, move in a foreign\natmosphere, and that the children are thereby hindered from becoming citizens of the most useful\ntype and the public safety is imperiled.\nThat the state may do much, go very far, indeed, in order to improve the quality of its citizens,\nphysically, mentally and morally, is clear; but the individual has certain fundamental rights which must\nbe respected. The protection of the Constitution extends to all, to those who speak other languages\nas well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had\nready understanding of our ordinary speech, but this cannot be coerced by methods which conflict\nwith the Constitution\xe2\x80\x94 a desirable end cannot be promoted by prohibited means.\nFor the welfare of his Ideal Commonwealth, Plato suggested a law which should provide:\n\xe2\x80\x98That the wives of our guardians are to be common, and their children are to be common, and\nno parent is to know his own child, nor any child his parent. \xe2\x80\xa6 The proper officers will take the\noffspring of the good parents to the pen or fold, and there they will deposit them with certain\nnurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when\nthey chance to be deformed, will be put away in some mysterious, unknown place, as they\nshould be.\xe2\x80\x99\nIn order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven\ninto barracks and intrusted their subsequent education and training to official guardians. Although\nsuch measures have been deliberately approved by men of great genius their ideas touching the\nrelation between individual and state were wholly different from those upon which our institutions\nrest; and it hardly will be affirmed that any Legislature could impose such restrictions upon the people\nof a state without doing violence to both letter and spirit of the Constitution.\nThe desire of the Legislature to foster a homogeneous people with American ideals prepared readily to\nunderstand current discussions of civic matters is easy to appreciate. Unfortunate experiences during\nthe late war and aversion toward every character of truculent adversaries were certainly enough to\nquicken that aspiration. But the means adopted, we think, exceed the limitations upon the power of\n\nCHAPTER TEN: Unenumerated Rights and Due Process | 511\n\n\x0cthe state and conflict with rights assured to plaintiff in error. The interference is plain enough and no\nadequate reason therefor in time of peace and domestic tranquility has been shown.\nThe power of the state to compel attendance at some school and to make reasonable regulations\nfor all schools, including a requirement that they shall give instructions in English, is not questioned.\n* * * *As the statute undertakes to interfere only with teaching which involves a modern language,\nleaving complete freedom as to other matters, there seems no adequate foundation for the suggestion\nthat the purpose was to protect the child\xe2\x80\x99s health by limiting his mental activities. It is well known that\nproficiency in a foreign language seldom comes to one not instructed at an early age, and experience\nshows that this is not injurious to the health, morals or understanding of the ordinary child.\nThe judgment of the court below must be reversed and the cause remanded for further proceedings\nnot inconsistent with this opinion.\nREVERSED.\nMR. JUSTICE HOLMES AND MR. JUSTICE SUTHERLAND, DISSENT.\n\nPierce v. Society of Sisters\n268 U.S. 510 (1925)\nMR. JUSTICE MCREYNOLDS DELIVERED THE OPINION OF THE COURT.\nThese appeals are from decrees, based upon undenied allegations, which granted preliminary orders\nrestraining appellants from threatening or attempting to enforce the Compulsory Education Act 1\nadopted November 7, 1922 * * * * by the voters of Oregon. They present the same points of law; there\nare no controverted questions of fact. Rights said to be guaranteed by the federal Constitution were\nspecially set up, and appropriate prayers asked for their protection.\nThe challenged act, effective September 1, 1926, requires every parent, guardian, or other person\nhaving control or charge or custody of a child between 8 and 16 years to send him \xe2\x80\x98to a public\nschool for the period of time a public school shall be held during the current year\xe2\x80\x99 in the district\nwhere the child resides; and failure so to do is declared a misdemeanor. There are exemptions-not\nspecially important here-for children who are not normal, or who have completed the eighth grade,\nor whose parents or private teachers reside at considerable distances from any public school, or who\nhold special permits from the county superintendent. The manifest purpose is to compel general\nattendance at public schools by normal children, between 8 and 16, who have not completed the\neighth grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy,\nthe profitable features of appellees\xe2\x80\x99 business and greatly diminish the value of their property.\nAppellee the Society of Sisters is an Oregon corporation, organized in 1880, with power to care for\norphans, educate and instruct the youth, establish and maintain academies or schools, and acquire\n512 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cnecessary real and personal property. It has long devoted its property and effort to the secular and\nreligious education and care of children, and has acquired the valuable good will of many parents and\nguardians. It conducts interdependent primary and high schools and junior colleges, and maintains\norphanages for the custody and control of children between 8 and 16. In its primary schools many\nchildren between those ages are taught the subjects usually pursued in Oregon public schools during\nthe first eight years. Systematic religious instruction and moral training according to the tenets of the\nRoman Catholic Church are also regularly provided. All courses of study, both temporal and religious,\ncontemplate continuity of training under appellee\xe2\x80\x99s charge; the primary schools are essential to the\nsystem and the most profitable. It owns valuable buildings, especially constructed and equipped for\nschool purposes. The business is remunerative-the annual income from primary schools exceeds\n$30,000-and the successful conduct of this requires long time contracts with teachers and parents.\nThe Compulsory Education Act of 1922 has already caused the withdrawal from its schools of children\nwho would otherwise continue, and their income has steadily declined. The appellants, public officers,\nhave proclaimed their purpose strictly to enforce the statute.\nAfter setting out the above facts, the Society\xe2\x80\x99s bill alleges that the enactment conflicts with the right of\nparents to choose schools where their children will receive appropriate mental and religious training,\nthe right of the child to influence the parents\xe2\x80\x99 choice of a school, the right of schools and teachers\ntherein to engage in a useful business or profession, and is accordingly repugnant to the Constitution\nand void. And, further, that unless enforcement of the measure is enjoined the corporation\xe2\x80\x99s business\nand property will suffer irreparable injury.\nAppellee Hill Military Academy is a private corporation organized in 1908 under the laws of Oregon,\nengaged in owning, operating, and conducting for profit an elementary, college preparatory, and\nmilitary training school for boys between the ages of 5 and 21 years. The average attendance is 100,\nand the annual fees received for each student amount to some $800. The elementary department\nis divided into eight grades, as in the public schools; the college preparatory department has four\ngrades, similar to those of the public high schools; the courses of study conform to the requirements\nof the state board of education. Military instruction and training are also given, under the supervision\nof an army officer. It owns considerable real and personal property, some useful only for school\npurposes. The business and incident good will are very valuable. In order to conduct its affairs, long\ntime contracts must be made for supplies, equipment, teachers, and pupils. Appellants, law officers\nof the state and county, have publicly announced that the Act of November 7, 1922, is valid and have\ndeclared their intention to enforce it. By reason of the statute and threat of enforcement appellee\xe2\x80\x99s\nbusiness is being destroyed and its property depreciated; parents and guardians are refusing to make\ncontracts for the future instruction of their sons, and some are being withdrawn.\n* * * * The {three judge} court ruled that the Fourteenth Amendment guaranteed appellees against the\ndeprivation of their property without due process of law consequent upon the unlawful interference\nby appellants with the free choice of patrons, present and prospective. * * * *\nNo question is raised concerning the power of the state reasonably to regulate all schools, to inspect,\nsupervise and examine them, their teachers and pupils; to require that all children of proper age\nattend some school, that teachers shall be of good moral character and patriotic disposition, that\n\nCHAPTER TEN: Unenumerated Rights and Due Process | 513\n\n\x0ccertain studies plainly essential to good citizenship must be taught, and that nothing be taught which\nis manifestly inimical to the public welfare.\nThe inevitable practical result of enforcing the act under consideration would be destruction of\nappellees\xe2\x80\x99 primary schools, and perhaps all other private primary schools for normal children within\nthe state of Oregon. Appellees are engaged in a kind of undertaking not inherently harmful, but long\nregarded as useful and meritorious. Certainly there is nothing in the present records to indicate that\nthey have failed to discharge their obligations to patrons, students, or the state. And there are no\npeculiar circumstances or present emergencies which demand extraordinary measures relative to\nprimary education.\nUnder the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably\ninterferes with the liberty of parents and guardians to direct the upbringing and education of children\nunder their control. As often heretofore pointed out, rights guaranteed by the Constitution may not\nbe abridged by legislation which has no reasonable relation to some purpose within the competency\nof the state. The fundamental theory of liberty upon which all governments in this Union repose\nexcludes any general power of the state to standardize its children by forcing them to accept\ninstruction from public teachers only. The child is not the mere creature of the state; those who\nnurture him and direct his destiny have the right, coupled with the high duty, to recognize and\nprepare him for additional obligations. * * * *\nThe decrees below are affirmed.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=43#h5p-14\n\nNotes\n1. Lochner gives its name to the so-called Lochner Era which is generally thought to begin with Alleyer\nv. Louisana, 165 U.S. 578 (1897) and to end with West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) in\nwhich the Court upheld a minimum wage law. In the mid-1930s, the United States was in the midst\nof the Great Depression and President Franklin Delano Roosevelt was exerting political pressure to\n\xe2\x80\x9cconvince\xe2\x80\x9d the Court to sustain economic legislation.\nThe Lochner era was marked by the Court\xe2\x80\x99s tendency to declare laws unconstitutional, often but not\nalways on substantive due process grounds. Generally speaking, the laws declared unconstitutional\n\n514 | Liberty, Equality, and Due Process: Third Edition\n\n\x0csought to regulate businesses and were deemed to interfere with the \xe2\x80\x9cliberty of contract.\xe2\x80\x9d This is\nsometimes called \xe2\x80\x9ceconomic liberty\xe2\x80\x9d and has adherents today.\nThe generally accepted estimate of laws declared unconstitutional by the Court during the 40 year\nLochner era is 200, but again not all of these were on due process grounds. (For example, in Hammer\nv. Dagenhart, 247 U.S. 251 (1918), the Court declared a Congressional statute seeking to regulate child\nlabor as beyond the power of Congress). Nevertheless, the Lochner era is closely associated with\n\xe2\x80\x9cliberty,\xe2\x80\x9d due process, and the issue of unenumerated rights.\n2. In Williamson v. Lee Optical Co., 348 U.S. 483 (1955), the Court, in an opinion by Justice Douglas\nreversed a lower court\xe2\x80\x99s finding that an Oklahoma statute regulating opticians violated the Due\nProcess Clause. The statute regulated the various duties of optometrists and opticians: its effect\nwas to \xe2\x80\x9cforbid the optician from fitting or duplicating lenses without a prescription from an\nophthalmologist or optometrist. In practical effect, it means that no optician can fit old glasses into\nnew frames or supply a lens, whether it be a new lens or one to duplicate a lost or broken lens, without\na prescription.\xe2\x80\x9d The Court stated:\nThe Oklahoma law may exact a needless, wasteful requirement in many cases. But it is for\nthe legislature, not the courts, to balance the advantages and disadvantages of the new\nrequirement. It appears that in many cases the optician can easily supply the new frames or\nnew lenses without reference to the old written prescription. It also appears that many written\nprescriptions contain no directive data in regard to fitting spectacles to the face. But in some\ncases the directions contained in the prescription are essential, if the glasses are to be fitted\nso as to correct the particular defects of vision or alleviate the eye condition. The legislature\nmight have concluded that the frequency of occasions when a prescription is necessary was\nsufficient to justify this regulation of the fitting of eyeglasses. Likewise, when it is necessary\nto duplicate a lens, a written prescription may or may not be necessary. But the legislature\nmight have concluded that one was needed often enough to require one in every case. Or the\nlegislature may have concluded that eye examinations were so critical, not only for correction\nof vision but also for detection of latent ailments or diseases, that every change in frames and\nevery duplication of a lens should be accompanied by a prescription from a medical expert. To\nbe sure, the present law does not require a new examination of the eyes every time the frames\nare changed or the lenses duplicated. For if the old prescription is on file with the optician, he\ncan go ahead and make the new fitting or duplicate the lenses. But the law need not be in every\nrespect logically consistent with its aims to be constitutional. It is enough that there is an evil\nat hand for correction, and that it might be thought that the particular legislative measure was\na rational way to correct it.\nThe day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment\nto strike down state laws, regulatory of business and industrial conditions, because they may\nbe unwise, improvident, or out of harmony with a particular school of thought. We emphasize\nagain what Chief Justice Waite said in Munn v. Illinois (1876), \xe2\x80\x9cFor protection against abuses by\nlegislatures the people must resort to the polls, not to the courts.\xe2\x80\x9d\n3. The \xe2\x80\x9cGhost of Lochner\xe2\x80\x9d is said to \xe2\x80\x9chaunt\xe2\x80\x9d substantive due process. If people should \xe2\x80\x9cresort to\nCHAPTER TEN: Unenumerated Rights and Due Process | 515\n\n\x0cthe polls\xe2\x80\x9d for relief from laws that infringe their \xe2\x80\x9cfundamental rights,\xe2\x80\x9d the courts would be rendered\nirrelevant in such cases. Given that there are successful substantive due process challenges, the issue\nin post-Lochner era cases is how the courts avoid the error of Lochner.\n4. Both Meyer v. Nebraska and Pierce v. Society of Sisters are Lochner era cases, but they are also\nconsidered foundational cases for privacy doctrine, especially family privacy. Be prepared to discuss\nthe passages and arguments in the cases that are more closely related to economic liberty and those\nthat are more closely related to family privacy.\n\nGriswold v. Connecticut\n381 U.S. 479 (1965)\nDOUGLAS, J., WROTE THE OPINION FOR THE COURT, JOINED BY WARREN, C.J., CLARK, BRENNAN, AND GOLDBERG, J.J.\nGOLDBERG, J., FILED A CONCURRING OPINION, JOINED BY WARREN, C.J., AND BRENNAN, J. HARLAN, J., AND WHITE, J.,\nFILED SEPARATE CONCURRING OPINIONS. BLACK, J., FILED A DISSENTING OPINION JOINED BY STEWART, J. STEWART, J.,\nFILED A DISSENTING OPINION, JOINED BY BLACK, J.\nMR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT.\nAppellant Griswold is Executive Director of the Planned Parenthood League of Connecticut. Appellant\nBuxton is a licensed physician and a professor at the Yale Medical School who served as Medical\nDirector for the League at its Center in New Haven \xe2\x80\x93 a center open and operating from November 1\nto November 10, 1961, when appellants were arrested.\nThey gave information, instruction, and medical advice to married persons as to the means of\npreventing conception. They examined the wife and prescribed the best contraceptive device or\nmaterial for her use. Fees were usually charged, although some couples were serviced free.\nThe statutes whose constitutionality is involved in this appeal are 53-32 and 54-196 of the General\nStatutes of Connecticut (1958 rev.). The former provides:\n\xe2\x80\x9cAny person who uses any drug, medicinal article or instrument for the purpose of preventing\nconception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor\nmore than one year or be both fined and imprisoned.\xe2\x80\x9d\nSection 54-196 provides:\n\xe2\x80\x9cAny person who assists, abets, counsels, causes, hires or commands another to commit any\noffense may be prosecuted and punished as if he were the principal offender.\xe2\x80\x9d\nThe appellants were found guilty as accessories and fined $100 each, against the claim that the\naccessory statute as so applied violated the Fourteenth Amendment. The Appellate Division of the\n\n516 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cCircuit Court affirmed. The Supreme Court of Errors affirmed that judgment. We noted probable\njurisdiction.\nWe think that appellants have standing to raise the constitutional rights of the married people with\nwhom they had a professional relationship. * * * *\nComing to the merits, we are met with a wide range of questions that implicate the Due Process\nClause of the Fourteenth Amendment. Overtones of some arguments suggest that Lochner v. New\nYork (1905) should be our guide. But we decline that invitation as we did in West Coast Hotel Co. v.\nParrish (1937); Williamson v. Lee Optical Co. (1955). We do not sit as a super-legislature to determine\nthe wisdom, need, and propriety of laws that touch economic problems, business affairs, or social\nconditions. This law, however, operates directly on an intimate relation of husband and wife and their\nphysician\xe2\x80\x99s role in one aspect of that relation.\nThe association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to\neducate a child in a school of the parents\xe2\x80\x99 choice \xe2\x80\x93 whether public or private or parochial \xe2\x80\x93 is also\nnot mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First\nAmendment has been construed to include certain of those rights.\nBy Pierce v. Society of Sisters, the right to educate one\xe2\x80\x99s children as one chooses is made applicable\nto the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, the same\ndignity is given the right to study the German language in a private school. In other words, the State\nmay not, consistently with the spirit of the First Amendment, contract the spectrum of available\nknowledge. The right of freedom of speech and press includes not only the right to utter or to print,\nbut the right to distribute, the right to receive, the right to read and freedom of inquiry, freedom\nof thought, and freedom to teach \xe2\x80\x93 indeed the freedom of the entire university community. Without\nthose peripheral rights the specific rights would be less secure. And so we reaffirm the principle of\nthe Pierce and the Meyer cases.\nIn NAACP v. Alabama (1958) we protected the \xe2\x80\x9cfreedom to associate and privacy in one\xe2\x80\x99s associations,\xe2\x80\x9d\nnoting that freedom of association was a peripheral First Amendment right. Disclosure of membership\nlists of a constitutionally valid association, we held, was invalid \xe2\x80\x9cas entailing the likelihood of a\nsubstantial restraint upon the exercise by petitioner\xe2\x80\x99s members of their right to freedom of\nassociation.\xe2\x80\x9d Ibid. In other words, the First Amendment has a penumbra where privacy is protected\nfrom governmental intrusion. In like context, we have protected forms of \xe2\x80\x9cassociation\xe2\x80\x9d that are not\npolitical in the customary sense but pertain to the social, legal, and economic benefit of the members.\nIn Schware v. Board of Bar Examiners (1957) we held it not permissible to bar a lawyer from practice,\nbecause he had once been a member of the Communist Party. The man\xe2\x80\x99s \xe2\x80\x9cassociation with that Party\xe2\x80\x9d\nwas not shown to be \xe2\x80\x9canything more than a political faith in a political party\xe2\x80\x9d and was not action of a\nkind proving bad moral character.\nThose cases involved more than the \xe2\x80\x9cright of assembly\xe2\x80\x9d \xe2\x80\x93 a right that extends to all irrespective of\ntheir race or ideology. The right of \xe2\x80\x9cassociation,\xe2\x80\x9d like the right of belief is more than the right to attend\na meeting; it includes the right to express one\xe2\x80\x99s attitudes or philosophies by membership in a group\nor by affiliation with it or by other lawful means. Association in that context is a form of expression\nCHAPTER TEN: Unenumerated Rights and Due Process | 517\n\n\x0cof opinion; and while it is not expressly included in the First Amendment its existence is necessary in\nmaking the express guarantees fully meaningful.\nThe foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed\nby emanations from those guarantees that help give them life and substance. Various guarantees\ncreate zones of privacy. The right of association contained in the penumbra of the First Amendment\nis one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers\n\xe2\x80\x9cin any house\xe2\x80\x9d in time of peace without the consent of the owner is another facet of that privacy.\nThe Fourth Amendment explicitly affirms the \xe2\x80\x9cright of the people to be secure in their persons,\nhouses, papers, and effects, against unreasonable searches and seizures.\xe2\x80\x9d The Fifth Amendment in its\nSelf-Incrimination Clause enables the citizen to create a zone of privacy which government may not\nforce him to surrender to his detriment. The Ninth Amendment provides: \xe2\x80\x9cThe enumeration in the\nConstitution, of certain rights, shall not be construed to deny or disparage others retained by the\npeople.\xe2\x80\x9d\nThe Fourth and Fifth Amendments were described in Boyd v. United States (1886), as protection against\nall governmental invasions \xe2\x80\x9cof the sanctity of a man\xe2\x80\x99s home and the privacies of life.\xe2\x80\x9d We recently\nreferred in Mapp v. Ohio (1961) to the Fourth Amendment as creating a \xe2\x80\x9cright to privacy, no less\nimportant than any other right carefully and particularly reserved to the people.\xe2\x80\x9d\nWe have had many controversies over these penumbral rights of \xe2\x80\x9cprivacy and repose.\xe2\x80\x9d These cases\nbear witness that the right of privacy which presses for recognition here is a legitimate one.\nThe present case, then, concerns a relationship lying within the zone of privacy created by several\nfundamental constitutional guarantees. And it concerns a law which, in forbidding the use of\ncontraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means\nhaving a maximum destructive impact upon that relationship. Such a law cannot stand in light of the\nfamiliar principle, so often applied by this Court, that a \xe2\x80\x9cgovernmental purpose to control or prevent\nactivities constitutionally subject to state regulation may not be achieved by means which sweep\nunnecessarily broadly and thereby invade the area of protected freedoms.\xe2\x80\x9d Would we allow the police\nto search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The\nvery idea is repulsive to the notions of privacy surrounding the marriage relationship.\nWe deal with a right of privacy older than the Bill of Rights \xe2\x80\x93 older than our political parties, older\nthan our school system. Marriage is a coming together for better or for worse, hopefully enduring,\nand intimate to the degree of being sacred. It is an association that promotes a way of life, not causes;\na harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is\nan association for as noble a purpose as any involved in our prior decisions.\nReversed.\nMR. JUSTICE GOLDBERG, WHOM THE CHIEF JUSTICE AND MR. JUSTICE BRENNAN JOIN, CONCURRING.\nI agree with the Court that Connecticut\xe2\x80\x99s birth-control law unconstitutionally intrudes upon the right\nof marital privacy, and I join in its opinion and judgment. Although I have not accepted the view that\n518 | Liberty, Equality, and Due Process: Third Edition\n\n\x0c\xe2\x80\x9cdue process\xe2\x80\x9d as used in the Fourteenth Amendment incorporates all of the first eight Amendments\nI do agree that the concept of liberty protects those personal rights that are fundamental, and is not\nconfined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not\nso restricted and that it embraces the right of marital privacy though that right is not mentioned\nexplicitly in the Constitution is supported both by numerous decisions of this Court, referred to\nin the Court\xe2\x80\x99s opinion, and by the language and history of the Ninth Amendment. In reaching the\nconclusion that the right of marital privacy is protected, as being within the protected penumbra of\nspecific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment. I add these words\nto emphasize the relevance of that Amendment to the Court\xe2\x80\x99s holding. * * * *\nWhile this Court has had little occasion to interpret the Ninth Amendment, \xe2\x80\x9c[i]t cannot be presumed\nthat any clause in the constitution is intended to be without effect.\xe2\x80\x9d Marbury v. Madison (1803).\nIn interpreting the Constitution, \xe2\x80\x9creal effect should be given to all the words it uses.\xe2\x80\x9d The Ninth\nAmendment to the Constitution may be regarded by some as a recent discovery and may be forgotten\nby others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold.\nTo hold that a right so basic and fundamental and so deep-rooted in our society as the right of\nprivacy in marriage may be infringed because that right is not guaranteed in so many words by the\nfirst eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no\neffect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by\nthe Constitution because it is not mentioned in explicit terms by one of the first eight amendments\nor elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that\n\xe2\x80\x9c[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage\nothers retained by the people.\xe2\x80\x9d (Emphasis added.)\n* * * * {t}he Ninth Amendment shows a belief of the Constitution\xe2\x80\x99s authors that fundamental rights\nexist that are not expressly enumerated in the first eight amendments and an intent that the list\nof rights included there not be deemed exhaustive. * * * *The Ninth Amendment simply shows the\nintent of the Constitution\xe2\x80\x99s authors that other fundamental personal rights should not be denied such\nprotection or disparaged in any other way simply because they are not specifically listed in the first\neight constitutional amendments. I do not see how this broadens the authority of the Court; rather it\nserves to support what this Court has been doing in protecting fundamental rights.\n* * * * In sum, I believe that the right of privacy in the marital relation is fundamental and basic \xe2\x80\x93\na personal right \xe2\x80\x9cretained by the people\xe2\x80\x9d within the meaning of the Ninth Amendment. Connecticut\ncannot constitutionally abridge this fundamental right, which is protected by the Fourteenth\nAmendment from infringement by the States. I agree with the Court that petitioners\xe2\x80\x99 convictions must\ntherefore be reversed.\nMR. JUSTICE HARLAN, CONCURRING IN THE JUDGMENT.\nI fully agree with the judgment of reversal, but find myself unable to join the Court\xe2\x80\x99s opinion. The\nreason is that it seems to me to evince an approach to this case very much like that taken by my\nBrothers Black and Stewart in dissent, namely: the Due Process Clause of the Fourteenth Amendment\n\nCHAPTER TEN: Unenumerated Rights and Due Process | 519\n\n\x0cdoes not touch this Connecticut statute unless the enactment is found to violate some right assured\nby the letter or penumbra of the Bill of Rights.\n* * * * In my view, the proper constitutional inquiry in this case is whether this Connecticut statute\ninfringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic\nvalues \xe2\x80\x9cimplicit in the concept of ordered liberty,\xe2\x80\x9d Palko v. Connecticut (1937). * * * *\nWhile I could not more heartily agree that judicial \xe2\x80\x9cself restraint\xe2\x80\x9d is an indispensable ingredient of\nsound constitutional adjudication, I do submit that the formula suggested for achieving it is more\nhollow than real. \xe2\x80\x9cSpecific\xe2\x80\x9d provisions of the Constitution, no less than \xe2\x80\x9cdue process,\xe2\x80\x9d lend themselves\nas readily to \xe2\x80\x9cpersonal\xe2\x80\x9d interpretations by judges whose constitutional outlook is simply to keep the\nConstitution in supposed \xe2\x80\x9ctune with the times.\xe2\x80\x9d * * * *\nMR. JUSTICE WHITE, CONCURRING IN THE JUDGMENT.\nIn my view this Connecticut law as applied to married couples deprives them of \xe2\x80\x9cliberty\xe2\x80\x9d without\ndue process of law, as that concept is used in the Fourteenth Amendment. I therefore concur in the\njudgment of the Court reversing these convictions under Connecticut\xe2\x80\x99s aiding and abetting statute.\n****\nMR. JUSTICE BLACK, WITH WHOM MR. JUSTICE STEWART JOINS, DISSENTING. {OMITTED}\nMR. JUSTICE STEWART, WHOM MR. JUSTICE BLACK JOINS, DISSENTING.\nSince 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone.\nI think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable,\nexcept in the oblique context of the present case. As a philosophical matter, I believe the use\nof contraceptives in the relationship of marriage should be left to personal and private choice,\nbased upon each individual\xe2\x80\x99s moral, ethical, and religious beliefs. As a matter of social policy, I think\nprofessional counsel about methods of birth control should be available to all, so that each individual\xe2\x80\x99s\nchoice can be meaningfully made. But we are not asked in this case to say whether we think this law is\nunwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that\nI cannot do.\nIn the course of its opinion the Court refers to no less than six Amendments to the Constitution: the\nFirst, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth. But the Court does not say which\nof these Amendments, if any, it thinks is infringed by this Connecticut law.\nWe are told that the Due Process Clause of the Fourteenth Amendment is not, as such, the \xe2\x80\x9cguide\xe2\x80\x9d in\nthis case. With that much I agree. There is no claim that this law, duly enacted by the Connecticut\nLegislature is unconstitutionally vague. There is no claim that the appellants were denied any of the\nelements of procedural due process at their trial, so as to make their convictions constitutionally\ninvalid. And, as the Court says, the day has long passed since the Due Process Clause was regarded as\n\n520 | Liberty, Equality, and Due Process: Third Edition\n\n\x0ca proper instrument for determining \xe2\x80\x9cthe wisdom, need, and propriety\xe2\x80\x9d of state laws. Lochner v. New\nYork (1905).\n* * * * What provision of the Constitution, then, does make this state law invalid? The Court says it is\nthe right of privacy \xe2\x80\x9ccreated by several fundamental constitutional guarantees.\xe2\x80\x9d With all deference, I\ncan find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or\nin any case ever before decided by this Court.\nAt the oral argument in this case we were told that the Connecticut law does not \xe2\x80\x9cconform to\ncurrent community standards.\xe2\x80\x9d But it is not the function of this Court to decide cases on the basis\nof community standards. We are here to decide cases \xe2\x80\x9cagreeably to the Constitution and laws of the\nUnited States.\xe2\x80\x9d It is the essence of judicial duty to subordinate our own personal views, our own ideas\nof what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect\nthe standards of the people of Connecticut, the people of Connecticut can freely exercise their true\nNinth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the\nconstitutional way to take this law off the books.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=43#h5p-15\n\nRoe v. Wade\n410 U.S. 113 (1973)\nBLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.J., AND DOUGLAS, BRENNAN, STEWART,\nMARSHALL, AND POWELL, JJ., JOINED. BURGER, C.J., DOUGLAS, J., AND STEWART, J., FILED CONCURRING OPINIONS.\nWHITE, J., FILED A DISSENTING OPINION, IN WHICH REHNQUIST, J., JOINED. REHNQUIST, J., FILED A DISSENTING OPINION.\nMR. JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT.\nThis Texas federal appeal and its Georgia companion, Doe v. Bolton, present constitutional challenges\nto state criminal abortion legislation. The Texas statutes under attack here are typical of those that\nhave been in effect in many States for approximately a century. The Georgia statutes, in contrast, have\na modern cast and are a legislative product that, to an extent at least, obviously reflects the influences\nof recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking\nabout an old issue.\nCHAPTER TEN: Unenumerated Rights and Due Process | 521\n\n\x0cWe forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion\ncontroversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly\nabsolute convictions that the subject inspires. One\xe2\x80\x99s philosophy, one\xe2\x80\x99s experiences, one\xe2\x80\x99s exposure to\nthe raw edges of human existence, one\xe2\x80\x99s religious training, one\xe2\x80\x99s attitudes toward life and family and\ntheir values, and the moral standards one establishes and seeks to observe, are all likely to influence\nand to color one\xe2\x80\x99s thinking and conclusions about abortion.\nIn addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to\nsimplify the problem.\nOur task, of course, is to resolve the issue by constitutional measurement, free of emotion and of\npredilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this\nopinion place some emphasis upon, medical and medical-legal history and what that history reveals\nabout man\xe2\x80\x99s attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr.\nJustice Holmes\xe2\x80\x99 admonition in his now-vindicated dissent in Lochner v. New York (1905):\n\xe2\x80\x9c[The Constitution] is made for people of fundamentally differing views, and the accident of\nour finding certain opinions natural and familiar or novel and even shocking ought not to\nconclude our judgment upon the question whether statutes embodying them conflict with the\nConstitution of the United States.\xe2\x80\x9d\n\nI\nThe Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State\xe2\x80\x99s Penal Code. These\nmake it a crime to \xe2\x80\x9cprocure an abortion,\xe2\x80\x9d as therein defined, or to attempt one, except with respect to\n\xe2\x80\x9can abortion procured or attempted by medical advice for the purpose of saving the life of the mother.\xe2\x80\x9d\nSimilar statutes are in existence in a majority of the States.\nTexas first enacted a criminal abortion statute in 1854. * * * *\n\nII\nJane Roe, a single woman who was residing in Dallas County, Texas, instituted this federal action in\nMarch 1970 against the District Attorney of the county. She sought a declaratory judgment that the\nTexas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the\ndefendant from enforcing the statutes.\nRoe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by\nan abortion \xe2\x80\x9cperformed by a competent, licensed physician, under safe, clinical conditions\xe2\x80\x9d; that she\nwas unable to get a \xe2\x80\x9clegal\xe2\x80\x9d abortion in Texas because her life did not appear to be threatened by\nthe continuation of her pregnancy; and that she could not afford to travel to another jurisdiction\nin order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were\nunconstitutionally vague and that they abridged her right of personal privacy, protected by the First,\n522 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cFourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported\nto sue \xe2\x80\x9con behalf of herself and all other women\xe2\x80\x9d similarly situated. * * * *\n* * * * On the merits, the District Court held that the \xe2\x80\x9cfundamental right of single women and\nmarried persons to choose whether to have children is protected by the Ninth Amendment, through\nthe Fourteenth Amendment,\xe2\x80\x9d and that the Texas criminal abortion statutes were void on their face\nbecause they were both unconstitutionally vague and constituted an overbroad infringement of the\nplaintiffs\xe2\x80\x99 Ninth Amendment rights. * * * *\n\nIII \xe2\x80\x93 IV\n{discussion of procedural issues, standing, and ripeness, and abstention omitted}\n\nV\nThe principal thrust of appellant\xe2\x80\x99s attack on the Texas statutes is that they improperly invade a right,\nsaid to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would\ndiscover this right in the concept of personal \xe2\x80\x9cliberty\xe2\x80\x9d embodied in the Fourteenth Amendment\xe2\x80\x99s Due\nProcess Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill\nof Rights or its penumbras, see Griswold v. Connecticut (1965); Eisenstadt v. Baird (1972); or among\nthose rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut (Goldberg, J.,\nconcurring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects,\nthe history of abortion, for such insight as that history may afford us, and then to examine the state\npurposes and interests behind the criminal abortion laws.\n\nVI\nIt perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority\nof States today are of relatively recent vintage. Those laws, generally proscribing abortion or its\nattempt at any time during pregnancy except when necessary to preserve the pregnant woman\xe2\x80\x99s\nlife, are not of ancient or even of common-law origin. Instead, they derive from statutory changes\neffected, for the most part, in the latter half of the 19th century.\n* * * *It is thus apparent that at common law, at the time of the adoption of our Constitution, and\nthroughout the major portion of the 19th century, abortion was viewed with less disfavor than under\nmost American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially\nbroader right to terminate a pregnancy than she does in most States today. At least with respect to\nthe early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this\nchoice was present in this country well into the 19th century. Even later, the law continued for some\ntime to treat less punitively an abortion procured in early pregnancy.\n****\nCHAPTER TEN: Unenumerated Rights and Due Process | 523\n\n\x0c{The Court discussed recent proceedings by the American Medical Ass\xe2\x80\x99n and then continued to the\nAmerican Bar Ass\xe2\x80\x99n}: At its meeting in February 1972 the ABA House of Delegates approved, with\n17 opposing votes, the Uniform Abortion Act that had been drafted and approved the preceding\nAugust by the Conference of Commissioners on Uniform State Laws. We set forth the Act in full in\nthe margin. {The ABA position allowed abortions performed by medical doctors within 20 weeks of\ncommencement of pregnancy and after that time if the physician has \xe2\x80\x9creasonable cause to believe\xe2\x80\x9d (i)\nthere is a substantial risk that continuance of the pregnancy would endanger the life of the mother\nor would gravely impair the physical or mental health of the mother, (ii) that the child would be born\nwith grave physical or mental defect, or (iii) that the pregnancy resulted from rape or incest, or illicit\nintercourse with a girl under the age of 16 years.\xe2\x80\x9d}\n\nVII\nThree reasons have been advanced to explain historically the enactment of criminal abortion laws in\nthe 19th century and to justify their continued existence.\nIt has been argued occasionally that these laws were the product of a Victorian social concern to\ndiscourage illicit sexual conduct. Texas, however, does not advance this justification in the present\ncase, and it appears that no court or commentator has taken the argument seriously. The appellants\nand amici contend, moreover, that this is not a proper state purpose at all and suggest that, if it were,\nthe Texas statutes are overbroad in protecting it since the law fails to distinguish between married\nand unwed mothers.\nA second reason is concerned with abortion as a medical procedure. When most criminal abortion\nlaws were first enacted, the procedure was a hazardous one for the woman. This was particularly true\nprior to the development of antisepsis. * * * *\nModern medical techniques have altered this situation. * * * * Consequently, any interest of the State\nin protecting the woman from an inherently hazardous procedure, except when it would be equally\ndangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas\nof health and medical standards do remain. The State has a legitimate interest in seeing to it that\nabortion, like any other medical procedure, is performed under circumstances that insure maximum\nsafety for the patient. This interest obviously extends at least to the performing physician and his\nstaff, to the facilities involved, to the availability of after-care, and to adequate provision for any\ncomplication or emergency that might arise. The prevalence of high mortality rates at illegal \xe2\x80\x9cabortion\nmills\xe2\x80\x9d strengthens, rather than weakens, the State\xe2\x80\x99s interest in regulating the conditions under which\nabortions are performed. Moreover, the risk to the woman increases as her pregnancy continues.\nThus, the State retains a definite interest in protecting the woman\xe2\x80\x99s own health and safety when an\nabortion is proposed at a late stage of pregnancy.\nThe third reason is the State\xe2\x80\x99s interest \xe2\x80\x93 some phrase it in terms of duty \xe2\x80\x93 in protecting prenatal life.\nSome of the argument for this justification rests on the theory that a new human life is present from\nthe moment of conception. The State\xe2\x80\x99s interest and general obligation to protect life then extends,\nit is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced\n524 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cagainst the life she carries within her, should the interest of the embryo or fetus not prevail. Logically,\nof course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that\nlife begins at conception or at some other point prior to live birth. In assessing the State\xe2\x80\x99s interest,\nrecognition may be given to the less rigid claim that as long as at least potential life is involved, the\nState may assert interests beyond the protection of the pregnant woman alone.\n* * * * It is with these interests, and the weight to be attached to them, that this case is concerned.\n\nVIII\nThe Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going\nback perhaps as far as Union Pacific R. Co. v. Botsford (1891), the Court has recognized that a right of\npersonal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.\nIn varying contexts, the Court or individual Justices have, indeed, found at least the roots of that\nright in the First Amendment; in the Fourth and Fifth Amendments; in the penumbras of the Bill\nof Rights, Griswold v. Connecticut (1965); in the Ninth Amendment, id. (Goldberg, J., concurring); or\nin the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer\nv. Nebraska (1923). These decisions make it clear that only personal rights that can be deemed\n\xe2\x80\x9cfundamental\xe2\x80\x9d or \xe2\x80\x9cimplicit in the concept of ordered liberty,\xe2\x80\x9d Palko v. Connecticut (1937), are included\nin this guarantee of personal privacy. They also make it clear that the right has some extension\nto activities relating to marriage, Loving v. Virginia (1967); procreation, Skinner v. Oklahoma (1942);\ncontraception, Eisenstadt v. Baird (1972); family relationships, Prince v. Massachusetts (1944); and child\nrearing and education, Pierce v. Society of Sisters (1925), Meyer v. Nebraska (1923).\nThis right of privacy, whether it be founded in the Fourteenth Amendment\xe2\x80\x99s concept of personal\nliberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in\nthe Ninth Amendment\xe2\x80\x99s reservation of rights to the people, is broad enough to encompass a woman\xe2\x80\x99s\ndecision whether or not to terminate her pregnancy. The detriment that the State would impose\nupon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm\nmedically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring,\nmay force upon the woman a distressful life and future. Psychological harm may be imminent. Mental\nand physical health may be taxed by child care. There is also the distress, for all concerned, associated\nwith the unwanted child, and there is the problem of bringing a child into a family already unable,\npsychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties\nand continuing stigma of unwed motherhood may be involved. All these are factors the woman and\nher responsible physician necessarily will consider in consultation.\nOn the basis of elements such as these, appellant and some amici argue that the woman\xe2\x80\x99s right is\nabsolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and\nfor whatever reason she alone chooses. With this we do not agree. Appellant\xe2\x80\x99s arguments that Texas\neither has no valid interest at all in regulating the abortion decision, or no interest strong enough to\nsupport any limitation upon the woman\xe2\x80\x99s sole determination, are unpersuasive. The Court\xe2\x80\x99s decisions\nrecognizing a right of privacy also acknowledge that some state regulation in areas protected by that\nCHAPTER TEN: Unenumerated Rights and Due Process | 525\n\n\x0cright is appropriate. As noted above, a State may properly assert important interests in safeguarding\nhealth, in maintaining medical standards, and in protecting potential life. At some point in pregnancy,\nthese respective interests become sufficiently compelling to sustain regulation of the factors that\ngovern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In\nfact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do\nwith one\xe2\x80\x99s body as one pleases bears a close relationship to the right of privacy previously articulated\nin the Court\xe2\x80\x99s decisions. The Court has refused to recognize an unlimited right of this kind in the past.\nJacobson v. Massachusetts (1905) (vaccination); Buck v. Bell (1927) (sterilization).\nWe, therefore, conclude that the right of personal privacy includes the abortion decision, but that this\nright is not unqualified and must be considered against important state interests in regulation.\nWe note that those federal and state courts that have recently considered abortion law challenges\nhave reached the same conclusion. * * * * {Although} others have sustained state statutes.\nAlthough the results are divided, most of these courts have agreed that the right of privacy, however\nbased, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and\nis subject to some limitations; and that at some point the state interests as to protection of health,\nmedical standards, and prenatal life, become dominant. We agree with this approach.\nWhere certain \xe2\x80\x9cfundamental rights\xe2\x80\x9d are involved, the Court has held that regulation limiting these\nrights may be justified only by a \xe2\x80\x9ccompelling state interest,\xe2\x80\x9d and that legislative enactments must be\nnarrowly drawn to express only the legitimate state interests at stake.\nIn the recent abortion cases, courts have recognized these principles. Those striking down state\nlaws have generally scrutinized the State\xe2\x80\x99s interests in protecting health and potential life, and have\nconcluded that neither interest justified broad limitations on the reasons for which a physician and\nhis pregnant patient might decide that she should have an abortion in the early stages of pregnancy.\nCourts sustaining state laws have held that the State\xe2\x80\x99s determinations to protect health or prenatal\nlife are dominant and constitutionally justifiable.\n\nIX\nThe District Court held that the appellee failed to meet his burden of demonstrating that the Texas\nstatute\xe2\x80\x99s infringement upon Roe\xe2\x80\x99s rights was necessary to support a compelling state interest, and\nthat, although the appellee presented \xe2\x80\x9cseveral compelling justifications for state presence in the\narea of abortions,\xe2\x80\x9d the statutes outstripped these justifications and swept \xe2\x80\x9cfar beyond any areas of\ncompelling state interest.\xe2\x80\x9d Appellant and appellee both contest that holding. Appellant, as has been\nindicated, claims an absolute right that bars any state imposition of criminal penalties in the area.\nAppellee argues that the State\xe2\x80\x99s determination to recognize and protect prenatal life from and after\nconception constitutes a compelling state interest. As noted above, we do not agree fully with either\nformulation.\n\n526 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cA\nThe appellee and certain amici argue that the fetus is a \xe2\x80\x9cperson\xe2\x80\x9d within the language and meaning of\nthe Fourteenth Amendment. In support of this, they outline at length and in detail the well-known\nfacts of fetal development. If this suggestion of personhood is established, the appellant\xe2\x80\x99s case, of\ncourse, collapses, for the fetus\xe2\x80\x99 right to life would then be guaranteed specifically by the Amendment.\nThe appellant conceded as much on reargument. On the other hand, the appellee conceded on\nreargument that no case could be cited that holds that a fetus is a person within the meaning of the\nFourteenth Amendment.\nThe Constitution does not define \xe2\x80\x9cperson\xe2\x80\x9d in so many words. Section 1 of the Fourteenth Amendment\ncontains three references to \xe2\x80\x9cperson.\xe2\x80\x9d The first, in defining \xe2\x80\x9ccitizens,\xe2\x80\x9d speaks of \xe2\x80\x9cpersons born or\nnaturalized in the United States.\xe2\x80\x9d The word also appears both in the Due Process Clause and in\nthe Equal Protection Clause. \xe2\x80\x9cPerson\xe2\x80\x9d is used in other places in the Constitution: in the listing of\nqualifications for Representatives and Senators, Art. I, \xc2\xa7 2, cl. 2, and 3, cl. 3; in the Apportionment\nClause, Art. I, \xc2\xa7 2, cl. 3; in the Migration and Importation provision, Art. I, \xc2\xa7 9, cl. 1; in the Emolument\nClause, Art. I, \xc2\xa7 9, cl. 8; in the Electors provisions, Art. II, \xc2\xa7 1, cl. 2, and the superseded cl. 3; in\nthe provision outlining qualifications for the office of President, Art. II, \xc2\xa7 1, cl. 5; in the Extradition\nprovisions, Art. IV, \xc2\xa7 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and\nTwenty-second Amendments, as well as in \xc2\xa7 2 and \xc2\xa7 3 of the Fourteenth Amendment. But in nearly all\nthese instances, the use of the word is such that it has application only postnatally. None indicates,\nwith any assurance, that it has any possible pre-natal application.\nAll this, together with our observation, that throughout the major portion of the 19th century\nprevailing legal abortion practices were far freer than they are today, persuades us that the word\n\xe2\x80\x9cperson,\xe2\x80\x9d as used in the Fourteenth Amendment, does not include the unborn. * * * * This conclusion,\nhowever, does not of itself fully answer the contentions raised by Texas, and we pass on to other\nconsiderations.\n\nB\nThe pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one\naccepts the medical definitions of the developing young in the human uterus. See Dorland\xe2\x80\x99s Illustrated\nMedical Dictionary 478-479, 547 (24th ed. 1965). The situation therefore is inherently different from\nmarital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or\neducation, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were\nrespectively concerned. As we have intimated above, it is reasonable and appropriate for a State to\ndecide that at some point in time another interest, that of health of the mother or that of potential\nhuman life, becomes significantly involved. The woman\xe2\x80\x99s privacy is no longer sole and any right of\nprivacy she possesses must be measured accordingly.\nTexas urges that, apart from the Fourteenth Amendment, life begins at conception and is present\nthroughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life\nCHAPTER TEN: Unenumerated Rights and Due Process | 527\n\n\x0cfrom and after conception. We need not resolve the difficult question of when life begins. When those\ntrained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any\nconsensus, the judiciary, at this point in the development of man\xe2\x80\x99s knowledge, is not in a position to\nspeculate as to the answer.\nIt should be sufficient to note briefly the wide divergence of thinking on this most sensitive and\ndifficult question. There has always been strong support for the view that life does not begin until live\nbirth. This was the belief of the Stoics. It appears to be the predominant, though not the unanimous,\nattitude of the Jewish faith. It may be taken to represent also the position of a large segment of\nthe Protestant community, insofar as that can be ascertained; organized groups that have taken a\nformal position on the abortion issue have generally regarded abortion as a matter for the conscience\nof the individual and her family. As we have noted, the common law found greater significance in\nquickening. Physicians and their scientific colleagues have regarded that event with less interest and\nhave tended to focus either upon conception, upon live birth, or upon the interim point at which the\nfetus becomes \xe2\x80\x9cviable,\xe2\x80\x9d that is, potentially able to live outside the mother\xe2\x80\x99s womb, albeit with artificial\naid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24\nweeks. The Aristotelian theory of \xe2\x80\x9cmediate animation,\xe2\x80\x9d that held sway throughout the Middle Ages\nand the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century,\ndespite opposition to this \xe2\x80\x9censoulment\xe2\x80\x9d theory from those in the Church who would recognize the\nexistence of life from the moment of conception. The latter is now, of course, the official belief of the\nCatholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics\nas well, and by many physicians. Substantial problems for precise definition of this view are posed,\nhowever, by new embryological data that purport to indicate that conception is a \xe2\x80\x9cprocess\xe2\x80\x9d over time,\nrather than an event, and by new medical techniques such as menstrual extraction, the \xe2\x80\x9cmorningafter\xe2\x80\x9d pill, implantation of embryos, artificial insemination, and even artificial wombs.\nIn areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we\nrecognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined\nsituations and except when the rights are contingent upon live birth. * * * * In short, the unborn have\nnever been recognized in the law as persons in the whole sense.\n\nX\nIn view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights\nof the pregnant woman that are at stake. We repeat, however, that the State does have an important\nand legitimate interest in preserving and protecting the health of the pregnant woman, whether she\nbe a resident of the State or a nonresident who seeks medical consultation and treatment there, and\nthat it has still another important and legitimate interest in protecting the potentiality of human life.\nThese interests are separate and distinct. Each grows in substantiality as the woman approaches term\nand, at a point during pregnancy, each becomes \xe2\x80\x9ccompelling.\xe2\x80\x9d\nWith respect to the State\xe2\x80\x99s important and legitimate interest in the health of the mother, the\n\xe2\x80\x9ccompelling\xe2\x80\x9d point, in the light of present medical knowledge, is at approximately the end of the\n528 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cfirst trimester. This is so because of the now-established medical fact, that until the end of the first\ntrimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from\nand after this point, a State may regulate the abortion procedure to the extent that the regulation\nreasonably relates to the preservation and protection of maternal health. Examples of permissible\nstate regulation in this area are requirements as to the qualifications of the person who is to perform\nthe abortion; as to the licensure of that person; as to the facility in which the procedure is to be\nperformed, that is, whether it must be a hospital or may be a clinic or some other place of less-thanhospital status; as to the licensing of the facility; and the like.\nThis means, on the other hand, that, for the period of pregnancy prior to this \xe2\x80\x9ccompelling\xe2\x80\x9d point, the\nattending physician, in consultation with his patient, is free to determine, without regulation by the\nState, that, in his medical judgment, the patient\xe2\x80\x99s pregnancy should be terminated. If that decision is\nreached, the judgment may be effectuated by an abortion free of interference by the State.\nWith respect to the State\xe2\x80\x99s important and legitimate interest in potential life, the \xe2\x80\x9ccompelling\xe2\x80\x9d point is\nat viability. This is so because the fetus then presumably has the capability of meaningful life outside\nthe mother\xe2\x80\x99s womb. State regulation protective of fetal life after viability thus has both logical and\nbiological justifications. If the State is interested in protecting fetal life after viability, it may go so far\nas to proscribe abortion during that period, except when it is necessary to preserve the life or health\nof the mother.\nMeasured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions\nto those \xe2\x80\x9cprocured or attempted by medical advice for the purpose of saving the life of the mother,\xe2\x80\x9d\nsweeps too broadly. The statute makes no distinction between abortions performed early in\npregnancy and those performed later, and it limits to a single reason, \xe2\x80\x9csaving\xe2\x80\x9d the mother\xe2\x80\x99s life, the\nlegal justification for the procedure. The statute, therefore, cannot survive the constitutional attack\nmade upon it here.\nThis conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute\nasserted on grounds of vagueness.\n\nXI\nTo summarize and to repeat:\n1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition\nof the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.\n(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its\neffectuation must be left to the medical judgment of the pregnant woman\xe2\x80\x99s attending physician.\n(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its\ninterest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that\nare reasonably related to maternal health.\nCHAPTER TEN: Unenumerated Rights and Due Process | 529\n\n\x0c(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of\nhuman life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in\nappropriate medical judgment, for the preservation of the life or health of the mother.\n2. The State may define the term \xe2\x80\x9cphysician,\xe2\x80\x9d as it has been employed in the preceding paragraphs of\nthis Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe\nany abortion by a person who is not a physician as so defined.\n* * * * This holding, we feel, is consistent with the relative weights of the respective interests involved,\nwith the lessons and examples of medical and legal history, with the lenity of the common law, and\nwith the demands of the profound problems of the present day. The decision leaves the State free\nto place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those\nrestrictions are tailored to the recognized state interests. The decision vindicates the right of the\nphysician to administer medical treatment according to his professional judgment up to the points\nwhere important state interests provide compelling justifications for intervention. Up to those points,\nthe abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic\nresponsibility for it must rest with the physician. If an individual practitioner abuses the privilege of\nexercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.\n\nXII\nOur conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as\na unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would\nbe left with a statute proscribing all abortion procedures no matter how medically urgent the case.\n****\nMR. JUSTICE REHNQUIST, DISSENTING.\nThe Court\xe2\x80\x99s opinion brings to the decision of this troubling question both extensive historical fact and\na wealth of legal scholarship. While the opinion thus commands my respect, I find myself nonetheless\nin fundamental disagreement with those parts of it that invalidate the Texas statute in question, and\ntherefore dissent.\n\nI\n{discussion of standing omitted}\n\nII\nEven if there were a plaintiff in this case capable of litigating the issue which the Court decides, I\nwould reach a conclusion opposite to that reached by the Court. I have difficulty in concluding, as the\n530 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cCourt does, that the right of \xe2\x80\x9cprivacy\xe2\x80\x9d is involved in this case. Texas, by the statute here challenged,\nbars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A\ntransaction resulting in an operation such as this is not \xe2\x80\x9cprivate\xe2\x80\x9d in the ordinary usage of that word.\nNor is the \xe2\x80\x9cprivacy\xe2\x80\x9d that the Court finds here even a distant relative of the freedom from searches and\nseizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as\nembodying a right to privacy.\nIf the Court means by the term \xe2\x80\x9cprivacy\xe2\x80\x9d no more than that the claim of a person to be free\nfrom unwanted state regulation of consensual transactions may be a form of \xe2\x80\x9cliberty\xe2\x80\x9d protected by\nthe Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier\ndecisions on the basis of that liberty. * * * *\nBut that liberty is not guaranteed absolutely against deprivation, only against deprivation without due\nprocess of law. The test traditionally applied in the area of social and economic legislation is whether\nor not a law such as that challenged has a rational relation to a valid state objective. Williamson v. Lee\nOptical Co. (1955). The Due Process Clause of the Fourteenth Amendment undoubtedly does place a\nlimit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to\nprohibit an abortion even where the mother\xe2\x80\x99s life is in jeopardy, I have little doubt that such a statute\nwould lack a rational relation to a valid state objective under the test stated in Williamson. But the\nCourt\xe2\x80\x99s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to\njustify under that standard, and the conscious weighing of competing factors that the Court\xe2\x80\x99s opinion\napparently substitutes for the established test is far more appropriate to a legislative judgment than\nto a judicial one.\nThe Court eschews the history of the Fourteenth Amendment in its reliance on the \xe2\x80\x9ccompelling\nstate interest\xe2\x80\x9d test. But the Court adds a new wrinkle to this test by transposing it from the legal\nconsiderations associated with the Equal Protection Clause of the Fourteenth Amendment to this\ncase arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend\nthe consequences of this transplanting of the \xe2\x80\x9ccompelling state interest test,\xe2\x80\x9d the Court\xe2\x80\x99s opinion will\naccomplish the seemingly impossible feat of leaving this area of the law more confused than it found\nit.\nWhile the Court\xe2\x80\x99s opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York\n(1905), the result it reaches is more closely attuned to the majority opinion of Mr. Justice Peckham\nin that case. As in Lochner and similar cases applying substantive due process standards to economic\nand social welfare legislation, the adoption of the compelling state interest standard will inevitably\nrequire this Court to examine the legislative policies and pass on the wisdom of these policies in\nthe very process of deciding whether a particular state interest put forward may or may not be\n\xe2\x80\x9ccompelling.\xe2\x80\x9d The decision here to break pregnancy into three distinct terms and to outline the\npermissible restrictions the State may impose in each one, for example, partakes more of judicial\nlegislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.\nThe fact that a majority of the States reflecting, after all, the majority sentiment in those States, have\nhad restrictions on abortions for at least a century is a strong indication, it seems to me, that the\nasserted right to an abortion is not \xe2\x80\x9cso rooted in the traditions and conscience of our people as to be\nCHAPTER TEN: Unenumerated Rights and Due Process | 531\n\n\x0cranked as fundamental,\xe2\x80\x9d Even today, when society\xe2\x80\x99s views on abortion are changing, the very existence\nof the debate is evidence that the \xe2\x80\x9cright\xe2\x80\x9d to an abortion is not so universally accepted as the appellant\nwould have us believe.\nTo reach its result, the Court necessarily has had to find within the scope of the Fourteenth\nAmendment a right that was apparently completely unknown to the drafters of the Amendment.\nAs early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut\nLegislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36\nlaws enacted by state or territorial legislatures limiting abortion. While many States have amended or\nupdated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute\nstruck down today was, as the majority notes, first enacted in 1857, and \xe2\x80\x9chas remained substantially\nunchanged to the present time.\xe2\x80\x9d\nThere apparently was no question concerning the validity of this provision or of any of the other\nstate statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this\nhistory is that the drafters did not intend to have the Fourteenth Amendment withdraw from the\nStates the power to legislate with respect to this matter.\n\nIII\nEven if one were to agree that the case that the Court decides were here, and that the enunciation\nof the substantive constitutional law in the Court\xe2\x80\x99s opinion were proper, the actual disposition of the\ncase by the Court is still difficult to justify. The Texas statute is struck down in toto, even though\nthe Court apparently concedes that, at later periods of pregnancy Texas might impose these selfsame statutory limitations on abortion. My understanding of past practice is that a statute found to\nbe invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply \xe2\x80\x9cstruck\ndown\xe2\x80\x9d but is, instead, declared unconstitutional as applied to the fact situation before the Court. Yick\nWo v. Hopkins (1886).\nFor all of the foregoing reasons, I respectfully dissent.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=43#h5p-20\n\n532 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=43#h5p-21\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=43#h5p-23\n\nWashington v. Glucksberg\n521 U.S. 702 (1997)\nREHNQUIST, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH O\xe2\x80\x99CONNOR, SCALIA, KENNEDY, AND THOMAS, JJ.,\nJOINED. O\xe2\x80\x99CONNOR, J., FILED A CONCURRING OPINION, IN WHICH GINSBURG AND BREYER, JJ., JOINED IN PART. STEVENS,\nJ., SOUTER, J., GINSBURG, J., AND BREYER, J., FILED OPINIONS CONCURRING IN THE JUDGMENT.\nCHIEF JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT.\nThe question presented in this case is whether Washington\xe2\x80\x99s prohibition against \xe2\x80\x9ccaus[ing]\xe2\x80\x9d or\n\xe2\x80\x9caid[ing]\xe2\x80\x9d a suicide offends the Fourteenth Amendment to the United States Constitution. We hold\nthat it does not.\nIt has always been a crime to assist a suicide in the State of Washington. In 1854, Washington\xe2\x80\x99s\nfirst Territorial Legislature outlawed \xe2\x80\x9cassisting another in the commission of self murder.\xe2\x80\x9d Today,\nWashington law provides: \xe2\x80\x9cA person is guilty of promoting a suicide attempt when he knowingly\ncauses or aids another person to attempt suicide.\xe2\x80\x9d \xe2\x80\x9cPromoting a suicide attempt\xe2\x80\x9d is a felony,\npunishable by up to five years\xe2\x80\x99 imprisonment and up to a $10,000 fine. At the same time, Washington\xe2\x80\x99s\nNatural Death Act, enacted in 1979, states that the \xe2\x80\x9cwithholding or withdrawal of life sustaining\ntreatment\xe2\x80\x9d at a patient\xe2\x80\x99s direction \xe2\x80\x9cshall not, for any purpose, constitute a suicide.\xe2\x80\x9d\nPetitioners in this case are the State of Washington and its Attorney General. Respondents Harold\nGlucksberg, M. D., Abigail Halperin, M. D., Thomas A. Preston, M. D., and Peter Shalit, M. D., are\nphysicians who practice in Washington. These doctors occasionally treat terminally ill, suffering\npatients, and declare that they would assist these patients in ending their lives if not for Washington\xe2\x80\x99s\nassisted suicide ban. In January 1994, respondents, along with three gravely ill, pseudonymous\nplaintiffs who have since died and Compassion in Dying, a nonprofit organization that counsels people\nCHAPTER TEN: Unenumerated Rights and Due Process | 533\n\n\x0cconsidering physician assisted suicide, sued in the United States District Court, seeking a declaration\nthat Wash Rev. Code 9A.36.060(1) (1994) is, on its face, unconstitutional.\nThe plaintiffs asserted \xe2\x80\x9cthe existence of a liberty interest protected by the Fourteenth Amendment\nwhich extends to a personal choice by a mentally competent, terminally ill adult to commit physician\nassisted suicide.\xe2\x80\x9d Relying primarily on Planned Parenthood v. Casey (1992), and Cruzan v. Director,\nMissouri Dept. of Health (1990), the District Court agreed, and concluded that Washington\xe2\x80\x99s assisted\nsuicide ban is unconstitutional because it \xe2\x80\x9cplaces an undue burden on the exercise of [that]\nconstitutionally protected liberty interest.\xe2\x80\x9d * * * *\nA panel of the Court of Appeals for the Ninth Circuit reversed, emphasizing that \xe2\x80\x9c[i]n the two hundred\nand five years of our existence no constitutional right to aid in killing oneself has ever been asserted\nand upheld by a court of final jurisdiction.\xe2\x80\x9d The Ninth Circuit reheard the case en banc, reversed\nthe panel\xe2\x80\x99s decision, and affirmed the District Court. Like the District Court, the en banc Court of\nAppeals emphasized our Casey and Cruzan decisions. The court also discussed what it described as\n\xe2\x80\x9chistorical\xe2\x80\x9d and \xe2\x80\x9ccurrent societal attitudes\xe2\x80\x9d toward suicide and assisted suicide, and concluded that\n\xe2\x80\x9cthe Constitution encompasses a due process liberty interest in controlling the time and manner of\none\xe2\x80\x99s death\xe2\x80\x94that there is, in short, a constitutionally recognized \xe2\x80\x98right to die.\xe2\x80\x99 \xe2\x80\x9d After \xe2\x80\x9c[w]eighing and\nthen balancing\xe2\x80\x9d this interest against Washington\xe2\x80\x99s various interests, the court held that the State\xe2\x80\x99s\nassisted suicide ban was unconstitutional \xe2\x80\x9cas applied to terminally ill competent adults who wish to\nhasten their deaths with medication prescribed by their physicians.\xe2\x80\x9d * * * * We granted certiorari and\nnow reverse.\n\nI\nWe begin, as we do in all due process cases, by examining our Nation\xe2\x80\x99s history, legal traditions,\nand practices. In almost every State\xe2\x80\x94indeed, in almost every western democracy\xe2\x80\x94it is a crime to\nassist a suicide. The States\xe2\x80\x99 assisted suicide bans are not innovations. Rather, they are longstanding\nexpressions of the States\xe2\x80\x99 commitment to the protection and preservation of all human life.\n****\nMore specifically, for over 700 years, the Anglo American common law tradition has punished or\notherwise disapproved of both suicide and assisting suicide. In the 13th century, Henry de Bracton,\none of the first legal treatise writers, observed that \xe2\x80\x9c[ j]ust as a man may commit felony by slaying\nanother so may he do so by slaying himself.\xe2\x80\x9d The real and personal property of one who killed himself\nto avoid conviction and punishment for a crime were forfeit to the king; however, thought Bracton,\n\xe2\x80\x9cif a man slays himself in weariness of life or because he is unwilling to endure further bodily pain . . .\n[only] his movable goods [were] confiscated.\xe2\x80\x9d Thus, \xe2\x80\x9c[t]he principle that suicide of a sane person, for\nwhatever reason, was a punishable felony was . . . introduced into English common law.\xe2\x80\x9d Centuries\nlater, Sir William Blackstone, whose Commentaries on the Laws of England not only provided a\ndefinitive summary of the common law but was also a primary legal authority for 18th and 19th\ncentury American lawyers, referred to suicide as \xe2\x80\x9cself murder\xe2\x80\x9d and \xe2\x80\x9cthe pretended heroism, but real\ncowardice, of the Stoic philosophers, who destroyed themselves to avoid those ills which they had not\n534 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cthe fortitude to endure . . . .\xe2\x80\x9d Blackstone emphasized that \xe2\x80\x9cthe law has . . . ranked [suicide] among the\nhighest crimes,\xe2\x80\x9d although, anticipating later developments, he conceded that the harsh and shameful\npunishments imposed for suicide \xe2\x80\x9cborde[r] a little upon severity.\xe2\x80\x9d\nFor the most part, the early American colonies adopted the common law approach. * * * * Over\ntime, however, the American colonies abolished these harsh common law penalties. William Penn\nabandoned the criminal forfeiture sanction in Pennsylvania in 1701, and the other colonies (and later,\nthe other States) eventually followed this example. * * * *\nNonetheless, although States moved away from Blackstone\xe2\x80\x99s treatment of suicide, courts continued to\ncondemn it as a grave public wrong.\n****\nThe earliest American statute explicitly to outlaw assisting suicide was enacted in New York in\n1828, and many of the new States and Territories followed New York\xe2\x80\x99s example. Between 1857 and\n1865, a New York commission led by Dudley Field drafted a criminal code that prohibited \xe2\x80\x9caiding\xe2\x80\x9d\na suicide and, specifically, \xe2\x80\x9cfurnish[ing] another person with any deadly weapon or poisonous drug,\nknowing that such person intends to use such weapon or drug in taking his own life.\xe2\x80\x9d By the time the\nFourteenth Amendment was ratified, it was a crime in most States to assist a suicide.\n* * * * In this century, the Model Penal Code also prohibited \xe2\x80\x9caiding\xe2\x80\x9d suicide, prompting many States\nto enact or revise their assisted suicide bans. The Code\xe2\x80\x99s drafters observed that \xe2\x80\x9cthe interests in\nthe sanctity of life that are represented by the criminal homicide laws are threatened by one who\nexpresses a willingness to participate in taking the life of another, even though the act may be\naccomplished with the consent, or at the request, of the suicide victim.\xe2\x80\x9d American Law Institute,\nModel Penal Code \xc2\xa7 210.5, Comment 5, p. 100 (Official Draft and Revised Comments 1980).\nThough deeply rooted, the States\xe2\x80\x99 assisted suicide bans have in recent years been reexamined and,\ngenerally, reaffirmed. Because of advances in medicine and technology, Americans today are\nincreasingly likely to die in institutions, from chronic illnesses. Public concern and democratic action\nare therefore sharply focused on how best to protect dignity and independence at the end of life, with\nthe result that there have been many significant changes in state laws and in the attitudes these laws\nreflect. Many States, for example, now permit \xe2\x80\x9cliving wills,\xe2\x80\x9d surrogate health care decisionmaking, and\nthe withdrawal or refusal of life sustaining medical treatment. At the same time, however, voters and\nlegislators continue for the most part to reaffirm their States\xe2\x80\x99 prohibitions on assisting suicide. * * * *\nThus, the States are currently engaged in serious, thoughtful examinations of physician assisted\nsuicide and other similar issues. For example, New York State\xe2\x80\x99s Task Force on Life and the Law\xe2\x80\x94an\nongoing, blue ribbon commission composed of doctors, ethicists, lawyers, religious leaders, and\ninterested laymen\xe2\x80\x94was convened in 1984 and commissioned with \xe2\x80\x9ca broad mandate to recommend\npublic policy on issues raised by medical advances.\xe2\x80\x9d Over the past decade, the Task Force has\nrecommended laws relating to end of life decisions, surrogate pregnancy, and organ donation. After\nstudying physician assisted suicide, however, the Task Force unanimously concluded that \xe2\x80\x9c[l]egalizing\nassisted suicide and euthanasia would pose profound risks to many individuals who are ill and\n\nCHAPTER TEN: Unenumerated Rights and Due Process | 535\n\n\x0cvulnerable. . . . [T]he potential dangers of this dramatic change in public policy would outweigh any\nbenefit that might be achieved.\xe2\x80\x9d\nAttitudes toward suicide itself have changed since Bracton, but our laws have consistently\ncondemned, and continue to prohibit, assisting suicide. Despite changes in medical technology and\nnotwithstanding an increased emphasis on the importance of end of life decisionmaking, we have not\nretreated from this prohibition. Against this backdrop of history, tradition, and practice, we now turn\nto respondents\xe2\x80\x99 constitutional claim.\n\nII\nThe Due Process Clause guarantees more than fair process, and the \xe2\x80\x9cliberty\xe2\x80\x9d it protects includes\nmore than the absence of physical restraint. The Clause also provides heightened protection against\ngovernment interference with certain fundamental rights and liberty interests. In a long line of cases,\nwe have held that, in addition to the specific freedoms protected by the Bill of Rights, the \xe2\x80\x9cliberty\xe2\x80\x9d\nspecially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia (1967); to\nhave children, Skinner v. Oklahoma ex rel. Williamson (1942); to direct the education and upbringing of\none\xe2\x80\x99s children, Meyer v. Nebraska (1923); Pierce v. Society of Sisters (1925); to marital privacy, Griswold v.\nConnecticut (1965); to use contraception, Griswold, Eisenstadt v. Baird (1972); to bodily integrity, Rochin\nv. California (1952), and to abortion, Casey. We have also assumed, and strongly suggested, that the\nDue Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.\nCruzan.\nBut we \xe2\x80\x9cha[ve] always been reluctant to expand the concept of substantive due process because\nguideposts for responsible decisionmaking in this unchartered area are scarce and open ended.\xe2\x80\x9d By\nextending constitutional protection to an asserted right or liberty interest, we, to a great extent, place\nthe matter outside the arena of public debate and legislative action. We must therefore \xe2\x80\x9cexercise the\nutmost care whenever we are asked to break new ground in this field,\xe2\x80\x9d lest the liberty protected by the\nDue Process Clause be subtly transformed into the policy preferences of the members of this Court.\nOur established method of substantive due process analysis has two primary features: First, we have\nregularly observed that the Due Process Clause specially protects those fundamental rights and\nliberties which are, objectively, \xe2\x80\x9cdeeply rooted in this Nation\xe2\x80\x99s history and tradition,\xe2\x80\x9d and \xe2\x80\x9cimplicit\nin the concept of ordered liberty,\xe2\x80\x9d such that \xe2\x80\x9cneither liberty nor justice would exist if they were\nsacrificed,\xe2\x80\x9d Palko v. Connecticut (1937). Second, we have required in substantive due process cases a\n\xe2\x80\x9ccareful description\xe2\x80\x9d of the asserted fundamental liberty interest. Our Nation\xe2\x80\x99s history, legal traditions,\nand practices thus provide the crucial \xe2\x80\x9cguideposts for responsible decisionmaking,\xe2\x80\x9d that direct and\nrestrain our exposition of the Due Process Clause. As we stated recently, the Fourteenth Amendment\n\xe2\x80\x9cforbids the government to infringe . . . \xe2\x80\x9cfundamental\xe2\x80\x99 liberty interests at all, no matter what process\nis provided, unless the infringement is narrowly tailored to serve a compelling state interest.\xe2\x80\x9d\n* * * * In our view * * * * the development of this Court\xe2\x80\x99s substantive due process jurisprudence,\n* * * * has been a process whereby the outlines of the \xe2\x80\x9cliberty\xe2\x80\x9d specially protected by the Fourteenth\nAmendment\xe2\x80\x94never fully clarified, to be sure, and perhaps not capable of being fully clarified\xe2\x80\x94have\n536 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cat least been carefully refined by concrete examples involving fundamental rights found to be deeply\nrooted in our legal tradition. This approach tends to rein in the subjective elements that are\nnecessarily present in due process judicial review. In addition, by establishing a threshold\nrequirement\xe2\x80\x94that a challenged state action implicate a fundamental right\xe2\x80\x94before requiring more\nthan a reasonable relation to a legitimate state interest to justify the action, it avoids the need for\ncomplex balancing of competing interests in every case.\nTurning to the claim at issue here, the Court of Appeals stated that \xe2\x80\x9c[p]roperly analyzed, the first issue\nto be resolved is whether there is a liberty interest in determining the time and manner of one\xe2\x80\x99s death,\xe2\x80\x9d\nor, in other words, \xe2\x80\x9c[i]s there a right to die?\xe2\x80\x9d Similarly, respondents assert a \xe2\x80\x9cliberty to choose how to\ndie\xe2\x80\x9d and a right to \xe2\x80\x9ccontrol of one\xe2\x80\x99s final days,\xe2\x80\x9d and describe the asserted liberty as \xe2\x80\x9cthe right to choose\na humane, dignified death,\xe2\x80\x9d and \xe2\x80\x9cthe liberty to shape death.\xe2\x80\x9d As noted above, we have a tradition of\ncarefully formulating the interest at stake in substantive due process cases. For example, although\nCruzan is often described as a \xe2\x80\x9cright to die\xe2\x80\x9d case, we were, in fact, more precise: we assumed that\nthe Constitution granted competent persons a \xe2\x80\x9cconstitutionally protected right to refuse lifesaving\nhydration and nutrition.\xe2\x80\x9d Cruzan. The Washington statute at issue in this case prohibits \xe2\x80\x9caid[ing]\nanother person to attempt suicide\xe2\x80\x9d and, thus, the question before us is whether the \xe2\x80\x9cliberty\xe2\x80\x9d specially\nprotected by the Due Process Clause includes a right to commit suicide which itself includes a right\nto assistance in doing so.\nWe now inquire whether this asserted right has any place in our Nation\xe2\x80\x99s traditions. Here * * * * we\nare confronted with a consistent and almost universal tradition that has long rejected the asserted\nright, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To\nhold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike\ndown the considered policy choice of almost every State.\nRespondents contend, however, that the liberty interest they assert is consistent with this Court\xe2\x80\x99s\nsubstantive due process line of cases, if not with this Nation\xe2\x80\x99s history and practice. Pointing to Casey\nand Cruzan, respondents read our jurisprudence in this area as reflecting a general tradition of \xe2\x80\x9cself\nsovereignty,\xe2\x80\x9d and as teaching that the \xe2\x80\x9cliberty\xe2\x80\x9d protected by the Due Process Clause includes \xe2\x80\x9cbasic\nand intimate exercises of personal autonomy,\xe2\x80\x9d see Casey (\xe2\x80\x9cIt is a promise of the Constitution that\nthere is a realm of personal liberty which the government may not enter\xe2\x80\x9d). According to respondents,\nour liberty jurisprudence, and the broad, individualistic principles it reflects, protects the \xe2\x80\x9cliberty of\ncompetent, terminally ill adults to make end of life decisions free of undue government interference.\xe2\x80\x9d\nThe question presented in this case, however, is whether the protections of the Due Process Clause\ninclude a right to commit suicide with another\xe2\x80\x99s assistance. With this \xe2\x80\x9ccareful description\xe2\x80\x9d of\nrespondents\xe2\x80\x99 claim in mind, we turn to Casey and Cruzan.\nIn Cruzan, we considered whether Nancy Beth Cruzan, who had been severely injured in an\nautomobile accident and was in a persistive vegetative state, \xe2\x80\x9cha[d] a right under the United States\nConstitution which would require the hospital to withdraw life sustaining treatment\xe2\x80\x9d at her parents\xe2\x80\x99\nrequest. We began with the observation that \xe2\x80\x9c[a]t common law, even the touching of one person by\nanother without consent and without legal justification was a battery.\xe2\x80\x9d We then discussed the related\nrule that \xe2\x80\x9cinformed consent is generally required for medical treatment.\xe2\x80\x9d After reviewing a long line\nCHAPTER TEN: Unenumerated Rights and Due Process | 537\n\n\x0cof relevant state cases, we concluded that \xe2\x80\x9cthe common law doctrine of informed consent is viewed\nas generally encompassing the right of a competent individual to refuse medical treatment.\xe2\x80\x9d Next, we\nreviewed our own cases on the subject, and stated that \xe2\x80\x9c[t]he principle that a competent person has\na constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred\nfrom our prior decisions.\xe2\x80\x9d Therefore, \xe2\x80\x9cfor purposes of [that] case, we assume[d] that the United States\nConstitution would grant a competent person a constitutionally protected right to refuse lifesaving\nhydration and nutrition.\xe2\x80\x9d We concluded that, notwithstanding this right, the Constitution permitted\nMissouri to require clear and convincing evidence of an incompetent patient\xe2\x80\x99s wishes concerning the\nwithdrawal of life sustaining treatment.\n* * * * The right assumed in Cruzan, however, was not simply deduced from abstract concepts of\npersonal autonomy. Given the common law rule that forced medication was a battery, and the long\nlegal tradition protecting the decision to refuse unwanted medical treatment, our assumption was\nentirely consistent with this Nation\xe2\x80\x99s history and constitutional traditions. The decision to commit\nsuicide with the assistance of another may be just as personal and profound as the decision to refuse\nunwanted medical treatment, but it has never enjoyed similar legal protection. Indeed, the two acts\nare widely and reasonably regarded as quite distinct. In Cruzan itself, we recognized that most States\noutlawed assisted suicide\xe2\x80\x94and even more do today\xe2\x80\x94and we certainly gave no intimation that the\nright to refuse unwanted medical treatment could be somehow transmuted into a right to assistance\nin committing suicide.\nRespondents also rely on Casey. There, the Court\xe2\x80\x99s opinion concluded that \xe2\x80\x9cthe essential holding of\nRoe v. Wade should be retained and once again reaffirmed.\xe2\x80\x9d We held, first, that a woman has a right,\nbefore her fetus is viable, to an abortion \xe2\x80\x9cwithout undue interference from the State\xe2\x80\x9d; second, that\nStates may restrict post-viability abortions, so long as exceptions are made to protect a woman\xe2\x80\x99s life\nand health; and third, that the State has legitimate interests throughout a pregnancy in protecting\nthe health of the woman and the life of the unborn child. In reaching this conclusion, the opinion\ndiscussed in some detail this Court\xe2\x80\x99s substantive due process tradition of interpreting the Due\nProcess Clause to protect certain fundamental rights and \xe2\x80\x9cpersonal decisions relating to marriage,\nprocreation, contraception, family relationships, child rearing, and education,\xe2\x80\x9d and noted that many of\nthose rights and liberties \xe2\x80\x9cinvolv[e] the most intimate and personal choices a person may make in a\nlifetime.\xe2\x80\x9d\n* * * * That many of the rights and liberties protected by the Due Process Clause sound in personal\nautonomy does not warrant the sweeping conclusion that any and all important, intimate, and\npersonal decisions are so protected, San Antonio Independent School Dist. v. Rodriguez (1973), and\nCasey did not suggest otherwise.\nThe history of the law\xe2\x80\x99s treatment of assisted suicide in this country has been and continues to be one\nof the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude\nthat the asserted \xe2\x80\x9cright\xe2\x80\x9d to assistance in committing suicide is not a fundamental liberty interest\nprotected by the Due Process Clause. The Constitution also requires, however, that Washington\xe2\x80\x99s\nassisted suicide ban be rationally related to legitimate government interests. This requirement is\nunquestionably met here. As the court below recognized, Washington\xe2\x80\x99s assisted suicide ban implicates\na number of state interests.\n538 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cFirst, Washington has an \xe2\x80\x9cunqualified interest in the preservation of human life.\xe2\x80\x9d The State\xe2\x80\x99s\nprohibition on assisted suicide, like all homicide laws, both reflects and advances its commitment to\nthis interest. This interest is symbolic and aspirational as well as practical * * * * Respondents admit\nthat \xe2\x80\x9c[t]he State has a real interest in preserving the lives of those who can still contribute to society\nand enjoy life.\xe2\x80\x9d The Court of Appeals also recognized Washington\xe2\x80\x99s interest in protecting life, but held\nthat the \xe2\x80\x9cweight\xe2\x80\x9d of this interest depends on the \xe2\x80\x9cmedical condition and the wishes of the person\nwhose life is at stake.\xe2\x80\x9d Washington, however, has rejected this sliding scale approach and, through its\nassisted suicide ban, insists that all persons\xe2\x80\x99 lives, from beginning to end, regardless of physical or\nmental condition, are under the full protection of the law. As we have previously affirmed, the States\n\xe2\x80\x9cmay properly decline to make judgments about the \xe2\x80\x98quality\xe2\x80\x99 of life that a particular individual may\nenjoy.\xe2\x80\x9d This remains true, as Cruzan makes clear, even for those who are near death.\nRelatedly, all admit that suicide is a serious public health problem, especially among persons in\notherwise vulnerable groups. The State has an interest in preventing suicide, and in studying,\nidentifying, and treating its causes.\nThose who attempt suicide\xe2\x80\x94terminally ill or not\xe2\x80\x94often suffer from depression or other mental\ndisorders. See New York Task Force (more than 95% of those who commit suicide had a major\npsychiatric illness at the time of death; among the terminally ill, uncontrolled pain is a \xe2\x80\x9crisk factor\xe2\x80\x9d\nbecause it contributes to depression). * * * * The New York Task Force, however, expressed its\nconcern that, because depression is difficult to diagnose, physicians and medical professionals often\nfail to respond adequately to seriously ill patients\xe2\x80\x99 needs. Thus, legal physician assisted suicide could\nmake it more difficult for the State to protect depressed or mentally ill persons, or those who are\nsuffering from untreated pain, from suicidal impulses.\nThe State also has an interest in protecting the integrity and ethics of the medical profession. In\ncontrast to the Court of Appeals\xe2\x80\x99 conclusion that \xe2\x80\x9cthe integrity of the medical profession would\n[not] be threatened in any way by [physician assisted suicide],\xe2\x80\x9d the American Medical Association,\nlike many other medical and physicians\xe2\x80\x99 groups, has concluded that \xe2\x80\x9c[p]hysician assisted suicide is\nfundamentally incompatible with the physician\xe2\x80\x99s role as healer.\xe2\x80\x9d And physician assisted suicide could,\nit is argued, undermine the trust that is essential to the doctor patient relationship by blurring the\ntime honored line between healing and harming.\nNext, the State has an interest in protecting vulnerable groups\xe2\x80\x94including the poor, the elderly, and\ndisabled persons\xe2\x80\x94from abuse, neglect, and mistakes. The Court of Appeals dismissed the State\xe2\x80\x99s\nconcern that disadvantaged persons might be pressured into physician assisted suicide as \xe2\x80\x9cludicrous\non its face.\xe2\x80\x9d We have recognized, however, the real risk of subtle coercion and undue influence in\nend of life situations. Cruzan. Similarly, the New York Task Force warned that \xe2\x80\x9c[l]egalizing physician\nassisted suicide would pose profound risks to many individuals who are ill and vulnerable . . . . The\nrisk of harm is greatest for the many individuals in our society whose autonomy and well being are\nalready compromised by poverty, lack of access to good medical care, advanced age, or membership\nin a stigmatized social group.\xe2\x80\x9d If physician assisted suicide were permitted, many might resort to it to\nspare their families the substantial financial burden of end of life health care costs.\nThe State\xe2\x80\x99s interest here goes beyond protecting the vulnerable from coercion; it extends to\nCHAPTER TEN: Unenumerated Rights and Due Process | 539\n\n\x0cprotecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and\n\xe2\x80\x9csocietal indifference.\xe2\x80\x9d The State\xe2\x80\x99s assisted suicide ban reflects and reinforces its policy that the lives\nof terminally ill, disabled, and elderly people must be no less valued than the lives of the young and\nhealthy, and that a seriously disabled person\xe2\x80\x99s suicidal impulses should be interpreted and treated the\nsame way as anyone else\xe2\x80\x99s.\nFinally, the State may fear that permitting assisted suicide will start it down the path to voluntary and\nperhaps even involuntary euthanasia. The Court of Appeals struck down Washington\xe2\x80\x99s assisted suicide\nban only \xe2\x80\x9cas applied to competent, terminally ill adults who wish to hasten their deaths by obtaining\nmedication prescribed by their doctors.\xe2\x80\x9d Washington insists, however, that the impact of the court\xe2\x80\x99s\ndecision will not and cannot be so limited. If suicide is protected as a matter of constitutional right,\nit is argued, \xe2\x80\x9cevery man and woman in the United States must enjoy it.\xe2\x80\x9d * * * * Thus, it turns out that\nwhat is couched as a limited right to \xe2\x80\x9cphysician assisted suicide\xe2\x80\x9d is likely, in effect, a much broader\nlicense, which could prove extremely difficult to police and contain. Washington\xe2\x80\x99s ban on assisting\nsuicide prevents such erosion.\nThis concern is further supported by evidence about the practice of euthanasia in the Netherlands.\nThe Dutch government\xe2\x80\x99s own study revealed that in 1990, there were 2,300 cases of voluntary\neuthanasia (defined as \xe2\x80\x9cthe deliberate termination of another\xe2\x80\x99s life at his request\xe2\x80\x9d), 400 cases of\nassisted suicide, and more than 1,000 cases of euthanasia without an explicit request. In addition\nto these latter 1,000 cases, the study found an additional 4,941 cases where physicians administered\nlethal morphine overdoses without the patients\xe2\x80\x99 explicit consent. This study suggests that, despite\nthe existence of various reporting procedures, euthanasia in the Netherlands has not been limited\nto competent, terminally ill adults who are enduring physical suffering, and that regulation of the\npractice may not have prevented abuses in cases involving vulnerable persons, including severely\ndisabled neonates and elderly persons suffering from dementia. The New York Task Force, citing the\nDutch experience, observed that \xe2\x80\x9cassisted suicide and euthanasia are closely linked,\xe2\x80\x9d and concluded\nthat the \xe2\x80\x9crisk of . . . abuse is neither speculative nor distant.\xe2\x80\x9d Washington, like most other States,\nreasonably ensures against this risk by banning, rather than regulating, assisting suicide.\nWe need not weigh exactingly the relative strengths of these various interests. They are\nunquestionably important and legitimate, and Washington\xe2\x80\x99s ban on assisted suicide is at least\nreasonably related to their promotion and protection. We therefore hold that Wash. Rev. Code\n\xc2\xa7 9A.36.060(1) (1994) does not violate the Fourteenth Amendment, either on its face or \xe2\x80\x9cas applied to\ncompetent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed\nby their doctors.\xe2\x80\x9d\n***\nThroughout the Nation, Americans are engaged in an earnest and profound debate about the morality,\nlegality, and practicality of physician assisted suicide. Our holding permits this debate to continue, as\nit should in a democratic society. The decision of the en banc Court of Appeals is reversed, and the\ncase is remanded for further proceedings consistent with this opinion.\nIt is so ordered.\n540 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cJUSTICE O\xe2\x80\x99CONNOR, CONCURRING. *\n{Justice Ginsburg concurs in the Court\xe2\x80\x99s judgments substantially for the reasons stated in this opinion.\nJustice Breyer joins this opinion except insofar as it joins the opinions of the Court.}\nDeath will be different for each of us. For many, the last days will be spent in physical pain and perhaps\nthe despair that accompanies physical deterioration and a loss of control of basic bodily and mental\nfunctions. Some will seek medication to alleviate that pain and other symptoms.\nThe Court frames the issue in this case as whether the Due Process Clause of the Constitution\nprotects a \xe2\x80\x9cright to commit suicide which itself includes a right to assistance in doing so,\xe2\x80\x9d and\nconcludes that \xe2\x80\x9cour Nation\xe2\x80\x99s history, legal traditions, and practices do not support the existence of\nsuch a right.\xe2\x80\x9d I join the Court\xe2\x80\x99s opinions because I agree that there is no generalized right to \xe2\x80\x9ccommit\nsuicide.\xe2\x80\x9d But respondents urge us to address the narrower question whether a mentally competent\nperson who is experiencing great suffering has a constitutionally cognizable interest in controlling\nthe circumstances of his or her imminent death. I see no need to reach that question in the context\nof the facial challenges to the New York and Washington laws at issue here. (\xe2\x80\x9cThe Washington statute\nat issue in this case prohibits \xe2\x80\x98aid[ing] another person to attempt suicide,\xe2\x80\x99. . . and, thus, the question\nbefore us is whether the \xe2\x80\x98liberty\xe2\x80\x99 specially protected by the Due Process Clause includes a right to\ncommit suicide which itself includes a right to assistance in doing so\xe2\x80\x9d). The parties and amici agree\nthat in these States a patient who is suffering from a terminal illness and who is experiencing great\npain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering,\neven to the point of causing unconsciousness and hastening death. In this light, even assuming that\nwe would recognize such an interest, I agree that the State\xe2\x80\x99s interests in protecting those who are not\ntruly competent or facing imminent death, or those whose decisions to hasten death would not truly\nbe voluntary, are sufficiently weighty to justify a prohibition against physician assisted suicide.\nEvery one of us at some point may be affected by our own or a family member\xe2\x80\x99s terminal illness.\nThere is no reason to think the democratic process will not strike the proper balance between the\ninterests of terminally ill, mentally competent individuals who would seek to end their suffering and\nthe State\xe2\x80\x99s interests in protecting those who might seek to end life mistakenly or under pressure. As\nthe Court recognizes, States are presently undertaking extensive and serious evaluation of physician\nassisted suicide and other related issues. In such circumstances, \xe2\x80\x9cthe . . . challenging task of crafting\nappropriate procedures for safeguarding . . . liberty interests is entrusted to the \xe2\x80\x98laboratory\xe2\x80\x99 of the\nStates . . . in the first instance.\xe2\x80\x9d Cruzan (O\xe2\x80\x99Connor, J., concurring) (citing New State Ice Co. v. Liebmann\n(1932)).\nIn sum, there is no need to address the question whether suffering patients have a constitutionally\ncognizable interest in obtaining relief from the suffering that they may experience in the last days of\ntheir lives. There is no dispute that dying patients in Washington and New York can obtain palliative\ncare, even when doing so would hasten their deaths. The difficulty in defining terminal illness and the\nrisk that a dying patient\xe2\x80\x99s request for assistance in ending his or her life might not be truly voluntary\njustifies the prohibitions on assisted suicide we uphold here.\n\nCHAPTER TEN: Unenumerated Rights and Due Process | 541\n\n\x0cJUSTICE STEVENS, CONCURRING IN THE JUDGMENTS.\nThe Court ends its opinion with the important observation that our holding today is fully consistent\nwith a continuation of the vigorous debate about the \xe2\x80\x9cmorality, legality, and practicality of physician\nassisted suicide\xe2\x80\x9d in a democratic society. I write separately to make it clear that there is also room for\nfurther debate about the limits that the Constitution places on the power of the States to punish the\npractice. * * * *\nToday, the Court decides that Washington\xe2\x80\x99s statute prohibiting assisted suicide is not invalid \xe2\x80\x9con its\nface,\xe2\x80\x9d that is to say, in all or most cases in which it might be applied. That holding, however, does not\nforeclose the possibility that some applications of the statute might well be invalid. * * * *\nJUSTICE SOUTER, CONCURRING IN THE JUDGMENT {OMITTED}.\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=43#h5p-16\n\nNote: Bowers v. Hardwick\nIn Bowers v. Harwick, 478 U.S. 186 (1986), the Court in a 5-4 decision reversing the Eleventh Circuit\nupheld the constitutionality of Georgia\xe2\x80\x99s sodomy statute that provided \xe2\x80\x9c(a) A person commits the\noffense of sodomy when he performs or submits to any sexual act involving the sex organs of one\nperson and the mouth or anus of another. . . . (b) A person convicted of the offense of sodomy shall be\npunished by imprisonment for not less than one nor more than 20 years. . . .\xe2\x80\x9d The opinion by Justice\nWhite for the Court stated:\nThis case does not require a judgment on whether laws against sodomy between consenting\nadults in general, or between homosexuals in particular, are wise or desirable. It raises no\nquestion about the right or propriety of state legislative decisions to repeal their laws that\ncriminalize homosexual sodomy, or of state-court decisions invalidating those laws on state\nconstitutional grounds. The issue presented is whether the Federal Constitution confers a\nfundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of\nthe many States that still make such conduct illegal and have done so for a very long time.\nThe case also calls for some judgment about the limits of the Court\xe2\x80\x99s role in carrying out its\nconstitutional mandate.\n542 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cWe first register our disagreement with the Court of Appeals and with respondent that the\nCourt\xe2\x80\x99s prior cases have construed the Constitution to confer a right of privacy that extends to\nhomosexual sodomy and for all intents and purposes have decided this case. The reach of this\nline of cases was sketched in Carey v. Population Services International (1977). Pierce v. Society\nof Sisters (1925), and Meyer v. Nebraska (1923), were described as dealing with child rearing\nand education; Prince v. Massachusetts (1944), with family relationships; Skinner v. Oklahoma\nex rel. Williamson (1942), with procreation; Loving v. Virginia (1967), with marriage; Griswold\nv. Connecticut (1965) and Eisenstadt v. Baird (1972) with contraception; and Roe v. Wade (1973),\nwith abortion. The latter three cases were interpreted as construing the Due Process Clause\nof the Fourteenth Amendment to confer a fundamental individual right to decide whether or\nnot to beget or bear a child.\nAccepting the decisions in these cases and the above description of them, we think it evident\nthat none of the rights announced in those cases bears any resemblance to the claimed\nconstitutional right of homosexuals to engage in acts of sodomy that is asserted in this case.\nNo connection between family, marriage, or procreation on the one hand and homosexual\nactivity on the other has been demonstrated, either by the Court of Appeals or by respondent.\nMoreover, any claim that these cases nevertheless stand for the proposition that any kind\nof private sexual conduct between consenting adults is constitutionally insulated from state\nproscription is unsupportable. Indeed, the Court\xe2\x80\x99s opinion in Carey twice asserted {in\nfootnotes} that the privacy right, which the Griswold line of cases found to be one of the\nprotections provided by the Due Process Clause, did not reach so far.\nPrecedent aside, however, respondent would have us announce, as the Court of Appeals did,\na fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. It\nis true that despite the language of the Due Process Clauses of the Fifth and Fourteenth\nAmendments, which appears to focus only on the processes by which life, liberty, or property\nis taken, the cases are legion in which those Clauses have been interpreted to have substantive\ncontent, subsuming rights that to a great extent are immune from federal or state regulation\nor proscription. Among such cases are those recognizing rights that have little or no textual\nsupport in the constitutional language. Meyer, Prince, and Pierce fall in this category, as do the\nprivacy cases from Griswold to Carey.\nStriving to assure itself and the public that announcing rights not readily identifiable in the\nConstitution\xe2\x80\x99s text involves much more than the imposition of the Justices\xe2\x80\x99 own choice of\nvalues on the States and the Federal Government, the Court has sought to identify the nature\nof the rights qualifying for heightened judicial protection. In Palko v. Connecticut (1937), it was\nsaid that this category includes those fundamental liberties that are \xe2\x80\x9cimplicit in the concept\nof ordered liberty,\xe2\x80\x9d such that \xe2\x80\x9cneither liberty nor justice would exist if [they] were sacrificed.\xe2\x80\x9d\nA different description of fundamental liberties appeared in Moore v. East Cleveland (1977)\n(opinion of Powell, J.), where they are characterized as those liberties that are \xe2\x80\x9cdeeply rooted\nin this Nation\xe2\x80\x99s history and tradition.\xe2\x80\x9d See also Griswold v. Connecticut.\nIt is obvious to us that neither of these formulations would extend a fundamental right to\nCHAPTER TEN: Unenumerated Rights and Due Process | 543\n\n\x0chomosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have\nancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws\nof the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth\nAmendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws.\nIn fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of\nColumbia continue to provide criminal penalties for sodomy performed in private and between\nconsenting adults. Against this background, to claim that a right to engage in such conduct\nis \xe2\x80\x9cdeeply rooted in this Nation\xe2\x80\x99s history and tradition\xe2\x80\x9d or \xe2\x80\x9cimplicit in the concept of ordered\nliberty\xe2\x80\x9d is, at best, facetious.\nNor are we inclined to take a more expansive view of our authority to discover new\nfundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and\ncomes nearest to illegitimacy when it deals with judge-made constitutional law having little\nor no cognizable roots in the language or design of the Constitution. That this is so was\npainfully demonstrated by the face-off between the Executive and the Court in the 1930\xe2\x80\x99s,\nwhich resulted in the repudiation of much of the substantive gloss that the Court had placed\non the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be,\ntherefore, great resistance to expand the substantive reach of those Clauses, particularly\nif it requires redefining the category of rights deemed to be fundamental. Otherwise, the\nJudiciary necessarily takes to itself further authority to govern the country without express\nconstitutional authority. The claimed right pressed on us today falls for short of overcoming\nthis resistance.\n****\nEven if the conduct at issue here is not a fundamental right, respondent asserts that there\nmust be a rational basis for the law and that there is none in this case other than the presumed\nbelief of a majority of the electorate in Georgia that homosexual sodomy is immoral and\nunacceptable. This is said to be an inadequate rationale to support the law. The law, however, is\nconstantly based on notions of morality, and if all laws representing essentially moral choices\nare to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even\nrespondent makes no such claim, but insists that majority sentiments about the morality of\nhomosexuality should be declared inadequate. We do not agree, and are unpersuaded that the\nsodomy laws of some 25 States should be invalidated on this basis.\nAccordingly, the judgment of the Court of Appeals is\nReversed.\nThe brief concurring opinion by Chief Justice Burger stressed the \xe2\x80\x9cancient roots\xe2\x80\x9d of proscriptions\nagainst sodomy, citing Roman law, Henry VIII, and Blackstone. The brief concurring opinion by Justice\nPowell suggested that there may be some protection under the Eighth Amendment: \xe2\x80\x9cThe Georgia\nstatute at issue in this case, Ga. Code Ann. 16-6-2 (1984), authorizes a court to imprison a person for\nup to 20 years for a single private, consensual act of sodomy. In my view, a prison sentence for such\nconduct \xe2\x80\x93 certainly a sentence of long duration \xe2\x80\x93 would create a serious Eighth Amendment issue.\n544 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cUnder the Georgia statute a single act of sodomy, even in the private setting of a home, is a felony\ncomparable in terms of the possible sentence imposed to serious felonies such as aggravated battery,\n16-5-24, first-degree arson, 16-7-60, and robbery, 16-8-40.\xe2\x80\x9d But, Justice Powell noted, Hardwick had\nnot been tried, found guilty, sentenced, or raised this issue below.\nThe dissenting opinion by Justice Blackmun, joined by Brennan, Marshall, and Stevens, begins thusly:\nThis case is no more about \xe2\x80\x9ca fundamental right to engage in homosexual sodomy,\xe2\x80\x9d as the\nCourt purports to declare, than Stanley v. Georgia (1969), was about a fundamental right to\nwatch obscene movies, or Katz v. United States (1967), was about a fundamental right to place\ninterstate bets from a telephone booth. Rather, this case is about \xe2\x80\x9cthe most comprehensive of\nrights and the right most valued by civilized men,\xe2\x80\x9d namely, \xe2\x80\x9cthe right to be let alone.\xe2\x80\x9dOlmstead\nv. United States (1928) (Brandeis, J., dissenting).\nThe statute at issue denies individuals the right to decide for themselves whether to engage in\nparticular forms of private, consensual sexual activity. The Court concludes that 16-6-2 is valid\nessentially because \xe2\x80\x9cthe laws of . . . many States . . . still make such conduct illegal and have\ndone so for a very long time.\xe2\x80\x9d But the fact that the moral judgments expressed by statutes like\n16-6-2 may be \xe2\x80\x9c\xe2\x80\x98natural and familiar . . . ought not to conclude our judgment upon the question\nwhether statutes embodying them conflict with the Constitution of the United States.\xe2\x80\x99\xe2\x80\x9d Roe v.\nWade (1973), quoting Lochner v. New York (1905) (Holmes, J., dissenting). Like Justice Holmes,\nI believe that \xe2\x80\x9c[i]t is revolting to have no better reason for a rule of law than that so it was\nlaid down in the time of Henry IV. It is still more revolting if the grounds upon which it\nwas laid down have vanished long since, and the rule simply persists from blind imitation\nof the past.\xe2\x80\x9d Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). I believe we must\nanalyze respondent Hardwick\xe2\x80\x99s claim in the light of the values that underlie the constitutional\nright to privacy. If that right means anything, it means that, before Georgia can prosecute its\ncitizens for making choices about the most intimate aspects of their lives, it must do more\nthan assert that the choice they have made is an \xe2\x80\x9c\xe2\x80\x98abominable crime not fit to be named among\nChristians.\xe2\x80\x99\xe2\x80\x9d Herring v. State, 119 Ga. 709, 721, 46 S. E. 876, 882 (1904).\nThe dissenting opinion engages in a lengthy analysis, often stressing the private nature of the act and\narguing that the case \xe2\x80\x9cinvolves no real interference with the rights of others, for the mere knowledge\nthat other individuals do not adhere to one\xe2\x80\x99s value system cannot be a legally cognizable interest, let\nalone an interest that can justify invading the houses, hearts, and minds of citizens who choose to live\ntheir lives differently.\xe2\x80\x9d The dissent concludes:\nIt took but three years for the Court to see the error in its analysis in Minersville School District\nv. Gobitis (1940), and to recognize that the threat to national cohesion posed by a refusal to\nsalute the flag was vastly outweighed by the threat to those same values posed by compelling\nsuch a salute. See West Virginia Board of Education v. Barnette (1943). I can only hope that\nhere, too, the Court soon will reconsider its analysis and conclude that depriving individuals\nof the right to choose for themselves how to conduct their intimate relationships poses a\nfar greater threat to the values most deeply rooted in our Nation\xe2\x80\x99s history than tolerance of\nnonconformity could ever do. Because I think the Court today betrays those values, I dissent.\nCHAPTER TEN: Unenumerated Rights and Due Process | 545\n\n\x0cLawrence v. Texas\n539 U.S. 558 (2003)\nKENNEDY, J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEVENS, SOUTER, GINSBURG, AND BREYER, JJ., JOINED.\nO\xe2\x80\x99CONNOR, J., FILED AN OPINION CONCURRING IN THE JUDGMENT. SCALIA, J., FILED A DISSENTING OPINION, IN WHICH\nREHNQUIST, C. J., AND THOMAS, J., JOINED. THOMAS, J., FILED A DISSENTING OPINION.\nJUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT.\nLiberty protects the person from unwarranted government intrusions into a dwelling or other private\nplaces. In our tradition the State is not omnipresent in the home. And there are other spheres of\nour lives and existence, outside the home, where the State should not be a dominant presence.\nFreedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom\nof thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the\nperson both in its spatial and more transcendent dimensions.\n\nI\nThe question before the Court is the validity of a Texas statute making it a crime for two persons of\nthe same sex to engage in certain intimate sexual conduct.\nIn Houston, Texas, officers of the Harris County Police Department were dispatched to a private\nresidence in response to a reported weapons disturbance. They entered an apartment where one of\nthe petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to\nhave been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a\nsexual act. The two petitioners were arrested, held in custody over night, and charged and convicted\nbefore a Justice of the Peace.\nThe complaints described their crime as \xe2\x80\x9cdeviate sexual intercourse, namely anal sex, with a member\nof the same sex (man).\xe2\x80\x9d The applicable state law is Tex. Penal Code Ann. \xc2\xa7 21.06(a) (2003). It provides:\n\xe2\x80\x9cA person commits an offense if he engages in deviate sexual intercourse with another individual of\nthe same sex.\xe2\x80\x9d The statute defines \xe2\x80\x9c[d]eviate sexual intercourse\xe2\x80\x9d as follows:\n(A) any contact between any part of the genitals of one person and the mouth or anus of\nanother person; or\n(B) the penetration of the genitals or the anus of another person with an object.\n\xc2\xa7 21.01(1).\nThe petitioners exercised their right to a trial de novo in Harris County Criminal Court. They\nchallenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and\nof a like provision of the Texas Constitution. Tex. Const., Art.1, \xc2\xa7 3a. Those contentions were rejected.\n546 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cThe petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court\ncosts of $141.25.\nThe Court of Appeals for the Texas Fourteenth District considered the petitioners\xe2\x80\x99 federal\nconstitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth\nAmendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional\narguments and affirmed the convictions. The majority opinion indicates that the Court of Appeals\nconsidered our decision in Bowers v. Hardwick (1986), to be controlling on the federal due process\naspect of the case. Bowers then being authoritative, this was proper.\nWe granted certiorari to consider three questions:\n\xe2\x80\x9c1. Whether Petitioners\xe2\x80\x99 criminal convictions under the Texas \xe2\x80\x9cHomosexual Conduct\xe2\x80\x9d law\xe2\x80\x94which\ncriminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex\ncouples\xe2\x80\x94violate the Fourteenth Amendment guarantee of equal protection of laws?\n\xe2\x80\x9c2. Whether Petitioners\xe2\x80\x99 criminal convictions for adult consensual sexual intimacy in the home violate\ntheir vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth\nAmendment?\n\xe2\x80\x9c3. Whether Bowers v. Hardwick (1986) should be overruled?\xe2\x80\x9d\nThe petitioners were adults at the time of the alleged offense. Their conduct was in private and\nconsensual.\n\nII\nWe conclude the case should be resolved by determining whether the petitioners were free as adults\nto engage in the private conduct in the exercise of their liberty under the Due Process Clause of the\nFourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the\nCourt\xe2\x80\x99s holding in Bowers.\nThere are broad statements of the substantive reach of liberty under the Due Process Clause in earlier\ncases, including Pierce v. Society of Sisters (1925), and Meyer v. Nebraska (1923); but the most pertinent\nbeginning point is our decision in Griswold v. Connecticut (1965).\nIn Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception\nand counseling or aiding and abetting the use of contraceptives. The Court described the protected\ninterest as a right to privacy and placed emphasis on the marriage relation and the protected space of\nthe marital bedroom.\nAfter Griswold it was established that the right to make certain decisions regarding sexual conduct\nextends beyond the marital relationship. In Eisenstadt v. Baird (1972), the Court invalidated a law\nprohibiting the distribution of contraceptives to unmarried persons. The case was decided under\nthe Equal Protection Clause, but with respect to unmarried persons, the Court went on to state the\nCHAPTER TEN: Unenumerated Rights and Due Process | 547\n\n\x0cfundamental proposition that the law impaired the exercise of their personal rights. It quoted from\nthe statement of the Court of Appeals finding the law to be in conflict with fundamental human rights,\nand it followed with this statement of its own:\nIt is true that in Griswold the right of privacy in question inhered in the marital relationship. . . .\nIf the right of privacy means anything, it is the right of the individual, married or single, to\nbe free from unwarranted governmental intrusion into matters so fundamentally affecting a\nperson as the decision whether to bear or beget a child.\nThe opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade\n(1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but\nthe laws of other States were affected as well. Although the Court held the woman\xe2\x80\x99s rights were not\nabsolute, her right to elect an abortion did have real and substantial protection as an exercise of her\nliberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases\nthat go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions\naffecting her destiny and confirmed once more that the protection of liberty under the Due Process\nClause has a substantive dimension of fundamental significance in defining the rights of the person.\nIn Carey v. Population Services Int\xe2\x80\x99l (1977), the Court confronted a New York law forbidding sale or\ndistribution of contraceptive devices to persons under 16 years of age. Although there was no single\nopinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and\nrationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of\nrights of married adults. This was the state of the law with respect to some of the most relevant cases\nwhen the Court considered Bowers v. Hardwick.\nThe facts in Bowers had some similarities to the instant case. A police officer, whose right to enter\nseems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate\nsexual conduct with another adult male. The conduct was in violation of a Georgia statute making it\na criminal offense to engage in sodomy. One difference between the two cases is that the Georgia\nstatute prohibited the conduct whether or not the participants were of the same sex, while the Texas\nstatute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted,\nbut he brought an action in federal court to declare the state statute invalid. He alleged he was a\npracticing homosexual and that the criminal prohibition violated rights guaranteed to him by the\nConstitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice\nBurger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four\nJustices dissented (opinion of Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ.); (opinion of\nStevens, J., joined by Brennan and Marshall, JJ.).\nThe Court began its substantive discussion in Bowers as follows: \xe2\x80\x9cThe issue presented is whether the\nFederal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence\ninvalidates the laws of the many States that still make such conduct illegal and have done so for a\nvery long time.\xe2\x80\x9d That statement, we now conclude, discloses the Court\xe2\x80\x99s own failure to appreciate\nthe extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage\nin certain sexual conduct demeans the claim the individual put forward, just as it would demean a\nmarried couple were it to be said marriage is simply about the right to have sexual intercourse. The\n548 | Liberty, Equality, and Due Process: Third Edition\n\n\x0claws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit\na particular sexual act. Their penalties and purposes, though, have more far-reaching consequences,\ntouching upon the most private human conduct, sexual behavior, and in the most private of places, the\nhome. The statutes do seek to control a personal relationship that, whether or not entitled to formal\nrecognition in the law, is within the liberty of persons to choose without being punished as criminals.\nThis, as a general rule, should counsel against attempts by the State, or a court, to define the meaning\nof the relationship or to set its boundaries absent injury to a person or abuse of an institution the law\nprotects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in\nthe confines of their homes and their own private lives and still retain their dignity as free persons.\nWhen sexuality finds overt expression in intimate conduct with another person, the conduct can be\nbut one element in a personal bond that is more enduring. The liberty protected by the Constitution\nallows homosexual persons the right to make this choice.\nHaving misapprehended the claim of liberty there presented to it, and thus stating the claim to\nbe whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said:\n\xe2\x80\x9cProscriptions against that conduct have ancient roots.\xe2\x80\x9d In academic writings, and in many of the\nscholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the\nhistorical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato\nInstitute as Amicus Curiae 16-17; Brief for American Civil Liberties Union etal. as Amici Curiae 15-21;\nBrief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt\nto reach a definitive historical judgment, but the following considerations counsel against adopting\nthe definitive conclusions upon which Bowers placed such reliance.\nAt the outset it should be noted that there is no longstanding history in this country of laws directed\nat homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions\nof sodomy derived from the English criminal laws passed in the first instance by the Reformation\nParliament of 1533. The English prohibition was understood to include relations between men and\nwomen as well as relations between men and men. See, e.g., King v. Wiseman, 92 Eng. Rep. 774,\n775 (K.B. 1718) (interpreting \xe2\x80\x9cmankind\xe2\x80\x9d in Act of 1533 as including women and girls). Nineteenthcentury commentators similarly read American sodomy, buggery, and crime-against-nature statutes\nas criminalizing certain relations between men and women and between men and men. See, e.g., 2\nJ. Bishop, Criminal Law \xc2\xa7 1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A\nCompendium of American Criminal Law 143 (1882); J. May, The Law of Crimes \xc2\xa7 203 (2d ed. 1893). The\nabsence of legal prohibitions focusing on homosexual conduct may be explained in part by noting\nthat according to some scholars the concept of the homosexual as a distinct category of person did\nnot emerge until the late 19th century. See, e.g., J. Katz, The Invention of Heterosexuality 10 (1995);\nJ. D\xe2\x80\x99Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) (\xe2\x80\x9cThe\nmodern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated\nthese distinctions\xe2\x80\x9d). Thus early American sodomy laws were not directed at homosexuals as such\nbut instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest\napproval of homosexual conduct. It does tend to show that this particular form of conduct was not\nthought of as a separate category from like conduct between heterosexual persons.\n\nCHAPTER TEN: Unenumerated Rights and Due Process | 549\n\n\x0cLaws prohibiting sodomy do not seem to have been enforced against consenting adults acting in\nprivate. A substantial number of sodomy prosecutions and convictions for which there are surviving\nrecords were for predatory acts against those who could not or did not consent, as in the case of\na minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure\nthere would be no lack of coverage if a predator committed a sexual assault that did not constitute\nrape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century\ntreatise, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of\ntargeting relations between consenting adults in private, 19th-century sodomy prosecutions typically\ninvolved relations between men and minor girls or minor boys, relations between adults involving\nforce, relations between adults implicating disparity in status, or relations between men and animals.\nTo the extent that there were any prosecutions for the acts in question, 19th-century evidence rules\nimposed a burden that would make a conviction more difficult to obtain even taking into account the\nproblems always inherent in prosecuting consensual acts committed in private. Under then-prevailing\nstandards, a man could not be convicted of sodomy based upon testimony of a consenting partner,\nbecause the partner was considered an accomplice. A partner\xe2\x80\x99s testimony, however, was admissible\nif he or she had not consented to the act or was a minor, and therefore incapable of consent. The\nrule may explain in part the infrequency of these prosecutions. In all events that infrequency makes\nit difficult to say that society approved of a rigorous and systematic punishment of the consensual\nacts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy\nupon which the Bowers decision placed such reliance is as consistent with a general condemnation\nof nonprocreative sex as it is with an established tradition of prosecuting acts because of their\nhomosexual character.\nThe policy of punishing consenting adults for private acts was not much discussed in the early\nlegal literature. We can infer that one reason for this was the very private nature of the conduct.\nDespite the absence of prosecutions, there may have been periods in which there was public criticism\nof homosexuals as such and an insistence that the criminal laws be enforced to discourage their\npractices. But far from possessing \xe2\x80\x9cancient roots,\xe2\x80\x9d American laws targeting same-sex couples did not\ndevelop until the last third of the 20th century. The reported decisions concerning the prosecution of\nconsensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the\ndetails, but a significant number involved conduct in a public place.\nIt was not until the 1970\xe2\x80\x99s that any State singled out same-sex relations for criminal prosecution, and\nonly nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p.652; 1974 Ky. Acts\np.847; 1977 Mo. Laws p.687; 1973 Mont. Laws p.1339; 1977 Nev. Stats. p.1632; 1989 Tenn. Pub. Acts ch.591;\n1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P.2d 1105 (Okla. Crim. App. 1986) (sodomy law\ninvalidated as applied to different-sex couples). Post-Bowers even some of these States did not adhere\nto the policy of suppressing homosexual conduct. Over the course of the last decades, States with\nsame-sex prohibitions have moved toward abolishing them. See, e.g., Jegley v. Picado, 349 Ark. 600, 80\nS.W.3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997); Campbell v. Sundquist, 926 S.W.\n2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992); see also 1993 Nev. Stats.\np. 518 (repealing Nev. Rev. Stat. \xc2\xa7 201.193).\n\n550 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cIn summary, the historical grounds relied upon in Bowers are more complex than the majority opinion\nand the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without\ndoubt and, at the very least, are overstated.\nIt must be acknowledged, of course, that the Court in Bowers was making the broader point that\nfor centuries there have been powerful voices to condemn homosexual conduct as immoral. The\ncondemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior,\nand respect for the traditional family. For many persons these are not trivial concerns but profound\nand deep convictions accepted as ethical and moral principles to which they aspire and which thus\ndetermine the course of their lives. These considerations do not answer the question before us,\nhowever. The issue is whether the majority may use the power of the State to enforce these views on\nthe whole society through operation of the criminal law. \xe2\x80\x9cOur obligation is to define the liberty of all,\nnot to mandate our own moral code.\xe2\x80\x9d Planned Parenthood of Southeastern Pa. v. Casey (1992).\nChief Justice Burger joined the opinion for the Court in Bowers and further explained his views\nas follows: \xe2\x80\x9cDecisions of individuals relating to homosexual conduct have been subject to state\nintervention throughout the history of Western civilization. Condemnation of those practices is firmly\nrooted in Judeao-Christian moral and ethical standards.\xe2\x80\x9d As with Justice White\xe2\x80\x99s assumptions about\nhistory, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger\nas it pertains to private homosexual conduct between consenting adults. In all events we think that\nour laws and traditions in the past half century are of most relevance here. These references show\nan emerging awareness that liberty gives substantial protection to adult persons in deciding how to\nconduct their private lives in matters pertaining to sex. \xe2\x80\x9c[H]istory and tradition are the starting point\nbut not in all cases the ending point of the substantive due process inquiry.\xe2\x80\x9d County of Sacramento v.\nLewis (1998) (Kennedy, J., concurring).\nThis emerging recognition should have been apparent when Bowers was decided. In 1955 the\nAmerican Law Institute promulgated the Model Penal Code and made clear that it did not recommend\nor provide for \xe2\x80\x9ccriminal penalties for consensual sexual relations conducted in private.\xe2\x80\x9d ALI, Model\nPenal Code \xc2\xa7 213.2, Comment 2, p.372 (1980). It justified its decision on three grounds: (1) The\nprohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the\nstatutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced\nand thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft\nNo. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon\nfollowed.\nIn Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at\nthe time of the Court\xe2\x80\x99s decision 24 States and the District of Columbia had sodomy laws. Justice Powell\npointed out that these prohibitions often were being ignored, however. Georgia, for instance, had\nnot sought to enforce its law for decades. (\xe2\x80\x9cThe history of nonenforcement suggests the moribund\ncharacter today of laws criminalizing this type of private, consensual conduct\xe2\x80\x9d).\nThe sweeping references by Chief Justice Burger to the history of Western civilization and to JudeoChristian moral and ethical standards did not take account of other authorities pointing in an opposite\ndirection. A committee advising the British Parliament recommended in 1957 repeal of laws punishing\nCHAPTER TEN: Unenumerated Rights and Due Process | 551\n\n\x0chomosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and\nProstitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual\nOffences Act 1967, \xc2\xa7 1.\nOf even more importance, almost five years before Bowers was decided the European Court of\nHuman Rights considered a case with parallels to Bowers and to today\xe2\x80\x99s case. An adult male resident\nin Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual\nhomosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been\nquestioned, his home had been searched, and he feared criminal prosecution. The court held that the\nlaws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon\nv. United Kingdom, 45 Eur. Ct. H.R. (1981) \xc2\xb6 52. Authoritative in all countries that are members of the\nCouncil of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers\nthat the claim put forward was insubstantial in our Western civilization.\nIn our own constitutional system the deficiencies in Bowers became even more apparent in the years\nfollowing its announcement. The 25 States with laws prohibiting the relevant conduct referenced in\nthe Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual\nconduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual\nconduct, there is a pattern of nonenforcement with respect to consenting adults acting in private.\nThe State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those\ncircumstances.\nTwo principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood\nof Southeastern Pa. v. Casey (1992), the Court reaffirmed the substantive force of the liberty protected\nby the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford\nconstitutional protection to personal decisions relating to marriage, procreation, contraception,\nfamily relationships, child rearing, and education. In explaining the respect the Constitution demands\nfor the autonomy of the person in making these choices, we stated as follows:\n\xe2\x80\xa2 These matters, involving the most intimate and personal choices a person may make in\na lifetime, choices central to personal dignity and autonomy, are central to the liberty\nprotected by the Fourteenth Amendment. At the heart of liberty is the right to define\none\xe2\x80\x99s own concept of existence, of meaning, of the universe, and of the mystery of human\nlife. Beliefs about these matters could not define the attributes of personhood were they\nformed under compulsion of the State.\xe2\x80\x9d\nPersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual\npersons do. The decision in Bowers would deny them this right.\nThe second post-Bowers case of principal relevance is Romer v. Evans (1996). There the Court struck\ndown class-based legislation directed at homosexuals as a violation of the Equal Protection Clause.\nRomer invalidated an amendment to Colorado\xe2\x80\x99s constitution which named as a solitary class persons\nwho were homosexuals, lesbians, or bisexual either by \xe2\x80\x9corientation, conduct, practices or\nrelationships,\xe2\x80\x9d and deprived them of protection under state antidiscrimination laws. We concluded\n\n552 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cthat the provision was \xe2\x80\x9cborn of animosity toward the class of persons affected\xe2\x80\x9d and further that it had\nno rational relation to a legitimate governmental purpose.\nAs an alternative argument in this case, counsel for the petitioners and some amici contend that\nRomer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause.\nThat is a tenable argument, but we conclude the instant case requires us to address whether Bowers\nitself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause\nsome might question whether a prohibition would be valid if drawn differently, say, to prohibit the\nconduct both between same-sex and different-sex participants.\nEquality of treatment and the due process right to demand respect for conduct protected by the\nsubstantive guarantee of liberty are linked in important respects, and a decision on the latter point\nadvances both interests. If protected conduct is made criminal and the law which does so remains\nunexamined for its substantive validity, its stigma might remain even if it were not enforceable as\ndrawn for equal protection reasons. When homosexual conduct is made criminal by the law of the\nState, that declaration in and of itself is an invitation to subject homosexual persons to discrimination\nboth in the public and in the private spheres. The central holding of Bowers has been brought in\nquestion by this case, and it should be addressed. Its continuance as precedent demeans the lives of\nhomosexual persons.\nThe stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a\nclass C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense\nwith all that imports for the dignity of the persons charged. The petitioners will bear on their record\nthe history of their criminal convictions. Just this Term we rejected various challenges to state laws\nrequiring the registration of sex offenders. We are advised that if Texas convicted an adult for private,\nconsensual homosexual conduct under the statute here in question the convicted person would come\nwithin the registration laws of a least four States were he or she to be subject to their jurisdiction.\nThis underscores the consequential nature of the punishment and the state-sponsored condemnation\nattendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the\nother collateral consequences always following a conviction, such as notations on job application\nforms, to mention but one example.\nThe foundations of Bowers have sustained serious erosion from our recent decisions in Casey and\nRomer. When our precedent has been thus weakened, criticism from other sources is of greater\nsignificance. In the United States criticism of Bowers has been substantial and continuing,\ndisapproving of its reasoning in all respects, not just as to its historical assumptions. See, e.g., C. Fried,\nOrder and Law: Arguing the Reagan Revolution\xe2\x80\x94A Firsthand Account 81-84 (1991); R. Posner, Sex and\nReason 341-350 (1992). The courts of five different States have declined to follow it in interpreting\nprovisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth\nAmendment.\nTo the extent Bowers relied on values we share with a wider civilization, it should be noted that\nthe reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human\nRights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. Other nations,\ntoo, have taken action consistent with an affirmation of the protected right of homosexual adults to\nCHAPTER TEN: Unenumerated Rights and Due Process | 553\n\n\x0cengage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11-12. The\nright the petitioners seek in this case has been accepted as an integral part of human freedom in\nmany other countries. There has been no showing that in this country the governmental interest in\ncircumscribing personal choice is somehow more legitimate or urgent.\nThe doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and\nto the stability of the law. It is not, however, an inexorable command. In Casey we noted that when\na Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or\nsocietal reliance on the existence of that liberty cautions with particular strength against reversing\ncourse. (\xe2\x80\x9cLiberty finds no refuge in a jurisprudence of doubt\xe2\x80\x9d). The holding in Bowers, however, has\nnot induced detrimental reliance comparable to some instances where recognized individual rights\nare involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could\ncounsel against overturning its holding once there are compelling reasons to do so. Bowers itself\ncauses uncertainty, for the precedents before and after its issuance contradict its central holding.\nThe rationale of Bowers does not withstand careful analysis. * * * * Justice Stevens\xe2\x80\x99 analysis {in the\ndissenting opinion in Bowers v. Hardwick}, in our view, should have been controlling in Bowers and\nshould control here.\nBowers was not correct when it was decided, and it is not correct today. It ought not to remain binding\nprecedent. Bowers v. Hardwick should be and now is overruled.\nThe present case does not involve minors. It does not involve persons who might be injured or\ncoerced or who are situated in relationships where consent might not easily be refused. It does not\ninvolve public conduct or prostitution. It does not involve whether the government must give formal\nrecognition to any relationship that homosexual persons seek to enter. The case does involve two\nadults who, with full and mutual consent from each other, engaged in sexual practices common to a\nhomosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot\ndemean their existence or control their destiny by making their private sexual conduct a crime. Their\nright to liberty under the Due Process Clause gives them the full right to engage in their conduct\nwithout intervention of the government. \xe2\x80\x9cIt is a promise of the Constitution that there is a realm of\npersonal liberty which the government may not enter.\xe2\x80\x9d Casey. The Texas statute furthers no legitimate\nstate interest which can justify its intrusion into the personal and private life of the individual.\nHad those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth\nAmendment known the components of liberty in its manifold possibilities, they might have been more\nspecific. They did not presume to have this insight. They knew times can blind us to certain truths and\nlater generations can see that laws once thought necessary and proper in fact serve only to oppress.\nAs the Constitution endures, persons in every generation can invoke its principles in their own search\nfor greater freedom.\nThe judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is\nremanded for further proceedings not inconsistent with this opinion.\nIt is so ordered.\n\n554 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cJUSTICE O\xe2\x80\x99CONNOR, CONCURRING IN THE JUDGMENT.\nThe Court today overrules Bowers v. Hardwick (1986). I joined Bowers, and do not join the Court in\noverruling it. Nevertheless, I agree with the Court that Texas\xe2\x80\x99 statute banning same-sex sodomy is\nunconstitutional. Rather than relying on the substantive component of the Fourteenth Amendment\xe2\x80\x99s\nDue Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment\xe2\x80\x99s Equal\nProtection Clause.\nThe Equal Protection Clause of the Fourteenth Amendment \xe2\x80\x9cis essentially a direction that all persons\nsimilarly situated should be treated alike.\xe2\x80\x9d Cleburne v. Cleburne Living Center, Inc. (1985) * * * * When\na law exhibits such a desire to harm a politically unpopular group, we have applied a more searching\nform of rational basis review to strike down such laws under the Equal Protection Clause.\n* * * * Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats\nthe same conduct differently based solely on the participants. Those harmed by this law are people\nwho have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by\n\xc2\xa7 21.06.\nThe Texas statute makes homosexuals unequal in the eyes of the law by making particular\nconduct\xe2\x80\x94and only that conduct\xe2\x80\x94subject to criminal sanction. It appears that prosecutions under\nTexas\xe2\x80\x99 sodomy law are rare. This case shows, however, that prosecutions under \xc2\xa7 21.06 do occur.\nAnd while the penalty imposed on petitioners in this case was relatively minor, the consequences of\nconviction are not. * * * *\nAnd the effect of Texas\xe2\x80\x99 sodomy law is not just limited to the threat of prosecution or consequence of\nconviction. Texas\xe2\x80\x99 sodomy law brands all homosexuals as criminals, thereby making it more difficult\nfor homosexuals to be treated in the same manner as everyone else. Indeed, Texas itself has previously\nacknowledged the collateral effects of the law, stipulating in a prior challenge to this action that\nthe law \xe2\x80\x9clegally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the\ncriminal law,\xe2\x80\x9d including in the areas of \xe2\x80\x9cemployment, family issues, and housing.\xe2\x80\x9d\n* * * * A law branding one class of persons as criminal solely based on the State\xe2\x80\x99s moral disapproval of\nthat class and the conduct associated with that class runs contrary to the values of the Constitution\nand the Equal Protection Clause, under any standard of review. I therefore concur in the Court\xe2\x80\x99s\njudgment that Texas\xe2\x80\x99 sodomy law banning \xe2\x80\x9cdeviate sexual intercourse\xe2\x80\x9d between consenting adults of\nthe same sex, but not between consenting adults of different sexes, is unconstitutional.\nJUSTICE SCALIA, WITH WHOM THE CHIEF JUSTICE AND JUSTICE THOMAS JOIN, DISSENTING.\n\xe2\x80\x9cLiberty finds no refuge in a jurisprudence of doubt.\xe2\x80\x9d Planned Parenthood of Southeastern Pa. v. Casey\n(1992). That was the Court\xe2\x80\x99s sententious response, barely more than a decade ago, to those seeking\nto overrule Roe v. Wade (1973). The Court\xe2\x80\x99s response today, to those who have engaged in a 17-year\ncrusade to overrule Bowers v. Hardwick (1986) is very different. The need for stability and certainty\npresents no barrier.\n\nCHAPTER TEN: Unenumerated Rights and Due Process | 555\n\n\x0cMost of the rest of today\xe2\x80\x99s opinion has no relevance to its actual holding\xe2\x80\x94that the Texas statute\n\xe2\x80\x9cfurthers no legitimate state interest which can justify\xe2\x80\x9d its application to petitioners under rationalbasis review. Though there is discussion of \xe2\x80\x9cfundamental proposition[s],\xe2\x80\x9d and \xe2\x80\x9cfundamental decisions,\xe2\x80\x9d\nnowhere does the Court\xe2\x80\x99s opinion declare that homosexual sodomy is a \xe2\x80\x9cfundamental right\xe2\x80\x9d under\nthe Due Process Clause; nor does it subject the Texas law to the standard of review that would be\nappropriate (strict scrutiny) if homosexual sodomy were a \xe2\x80\x9cfundamental right.\xe2\x80\x9d Thus, while overruling\nthe outcome of Bowers, the Court leaves strangely untouched its central legal conclusion:\n\xe2\x80\x9c[R]espondent would have us announce . . . a fundamental right to engage in homosexual sodomy. This\nwe are quite unwilling to do.\xe2\x80\x9d Instead the Court simply describes petitioners\xe2\x80\x99 conduct as \xe2\x80\x9can exercise\nof their liberty\xe2\x80\x9d\xe2\x80\x94which it undoubtedly is\xe2\x80\x94and proceeds to apply an unheard-of form of rational-basis\nreview that will have far-reaching implications beyond this case.\n\nI\nI begin with the Court\xe2\x80\x99s surprising readiness to reconsider a decision rendered a mere 17 years ago\nin Bowers v. Hardwick. I do not myself believe in rigid adherence to stare decisis in constitutional\ncases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine.\nToday\xe2\x80\x99s opinions in support of reversal do not bother to distinguish\xe2\x80\x94or indeed, even bother to\nmention\xe2\x80\x94the paean to stare decisis coauthored by three Members of today\xe2\x80\x99s majority in Planned\nParenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion\nrights, the widespread criticism of Roe was strong reason to reaffirm it:\n\xe2\x80\x9cWhere, in the performance of its judicial duties, the Court decides a case in such a way as\nto resolve the sort of intensely divisive controversy reflected in Roe[,] . . . its decision has a\ndimension that the resolution of the normal case does not carry. . . . [T]o overrule under fire\nin the absence of the most compelling reason . . . would subvert the Court\xe2\x80\x99s legitimacy beyond\nany serious question.\xe2\x80\x9d\nToday, however, the widespread opposition to Bowers, a decision resolving an issue as \xe2\x80\x9cintensely\ndivisive\xe2\x80\x9d as the issue in Roe, is offered as a reason in favor of overruling it. Gone, too, is any \xe2\x80\x9cenquiry\xe2\x80\x9d\n(of the sort conducted in Casey) into whether the decision sought to be overruled has \xe2\x80\x9cproven\n\xe2\x80\x98unworkable.\xe2\x80\x99\xe2\x80\x9d\nToday\xe2\x80\x99s approach to stare decisis invites us to overrule an erroneously decided precedent (including\nan \xe2\x80\x9cintensely divisive\xe2\x80\x9d decision) if: (1) its foundations have been \xe2\x80\x9ceroded\xe2\x80\x9d by subsequent decisions; (2)\nit has been subject to \xe2\x80\x9csubstantial and continuing\xe2\x80\x9d criticism.; and (3) it has not induced \xe2\x80\x9cindividual\nor societal reliance\xe2\x80\x9d that counsels against overturning. The problem is that Roe itself\xe2\x80\x94which today\xe2\x80\x99s\nmajority surely has no disposition to overrule\xe2\x80\x94satisfies these conditions to at least the same degree\nas Bowers. * * * *\nI do not quarrel with the Court\xe2\x80\x99s claim that Romer v. Evans (1996) \xe2\x80\x9ceroded\xe2\x80\x9d the \xe2\x80\x9cfoundations\xe2\x80\x9d of Bowers\xe2\x80\x99\nrational-basis holding. But Roe and Casey have been equally \xe2\x80\x9ceroded\xe2\x80\x9d by Washington v. Glucksberg\n(1997) which held that only fundamental rights which are \xe2\x80\x9c\xe2\x80\x98deeply rooted in this Nation\xe2\x80\x99s history and\n556 | Liberty, Equality, and Due Process: Third Edition\n\n\x0ctradition\xe2\x80\x99\xe2\x80\x9d qualify for anything other than rational basis scrutiny under the doctrine of \xe2\x80\x9csubstantive\ndue process.\xe2\x80\x9d Roe and Casey, of course, subjected the restriction of abortion to heightened scrutiny\nwithout even attempting to establish that the freedom to abort was rooted in this Nation\xe2\x80\x99s tradition.\n****\nTo tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today\nto revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey\xe2\x80\x99s extraordinary\ndeference to precedent for the result-oriented expedient that it is.\n\nII\nHaving decided that it need not adhere to stare decisis, the Court still must establish that Bowers was\nwrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional.\nTexas Penal Code Ann. \xc2\xa7 21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws\nprohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours\nper week in a bakery. But there is no right to \xe2\x80\x9cliberty\xe2\x80\x9d under the Due Process Clause, though today\xe2\x80\x99s\nopinion repeatedly makes that claim. (\xe2\x80\x9cThe liberty protected by the Constitution allows homosexual\npersons the right to make this choice\xe2\x80\x9d); (\xe2\x80\x9c\xe2\x80\x98These matters . . . are central to the liberty protected\nby the Fourteenth Amendment\xe2\x80\x99\xe2\x80\x9d); (\xe2\x80\x9cTheir right to liberty under the Due Process Clause gives them\nthe full right to engage in their conduct without intervention of the government\xe2\x80\x9d). The Fourteenth\nAmendment expressly allows States to deprive their citizens of \xe2\x80\x9cliberty,\xe2\x80\x9d so long as \xe2\x80\x9cdue process of\nlaw\xe2\x80\x9d is provided:\n\xe2\x80\x9cNo state shall . . . deprive any person of life, liberty, or property, without due process of law.\xe2\x80\x9d\nAmdt. 14 (emphasis added).\nOur opinions applying the doctrine known as \xe2\x80\x9csubstantive due process\xe2\x80\x9d hold that the Due Process\nClause prohibits States from infringing fundamental liberty interests, unless the infringement is\nnarrowly tailored to serve a compelling state interest. Washington v. Glucksberg. We have held\nrepeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this\nso-called \xe2\x80\x9cheightened scrutiny\xe2\x80\x9d protection\xe2\x80\x94that is, rights which are \xe2\x80\x9c\xe2\x80\x98deeply rooted in this Nation\xe2\x80\x99s\nhistory and tradition.\xe2\x80\x99\xe2\x80\x9d All other liberty interests may be abridged or abrogated pursuant to a validly\nenacted state law if that law is rationally related to a legitimate state interest.\nBowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened\nscrutiny because they do not implicate a \xe2\x80\x9cfundamental right\xe2\x80\x9d under the Due Process Clause. Noting\nthat \xe2\x80\x9c[p]roscriptions against that conduct have ancient roots,\xe2\x80\x9d that \xe2\x80\x9c[s]odomy was a criminal offense\nat common law and was forbidden by the laws of the original 13 States when they ratified the Bill of\nRights,\xe2\x80\x9d and that many States had retained their bans on sodomy, Bowers concluded that a right to\nengage in homosexual sodomy was not \xe2\x80\x9c\xe2\x80\x98deeply rooted in this Nation\xe2\x80\x99s history and tradition.\xe2\x80\x99\xe2\x80\x9d\nThe Court today does not overrule this holding. Not once does it describe homosexual sodomy as a\n\xe2\x80\x9cfundamental right\xe2\x80\x9d or a \xe2\x80\x9cfundamental liberty interest,\xe2\x80\x9d nor does it subject the Texas statute to strict\nCHAPTER TEN: Unenumerated Rights and Due Process | 557\n\n\x0cscrutiny. Instead, having failed to establish that the right to homosexual sodomy is \xe2\x80\x9c\xe2\x80\x98deeply rooted\nin this Nation\xe2\x80\x99s history and tradition,\xe2\x80\x99\xe2\x80\x9d the Court concludes that the application of Texas\xe2\x80\x99s statute to\npetitioners\xe2\x80\x99 conduct fails the rational-basis test, and overrules Bowers\xe2\x80\x99 holding to the contrary. \xe2\x80\x9cThe\nTexas statute furthers no legitimate state interest which can justify its intrusion into the personal and\nprivate life of the individual.\xe2\x80\x9d\nI shall address that rational-basis holding presently. First, however, I address some aspersions that\nthe Court casts upon Bowers\xe2\x80\x99 conclusion that homosexual sodomy is not a \xe2\x80\x9cfundamental right\xe2\x80\x9d\xe2\x80\x94even\nthough, as I have said, the Court does not have the boldness to reverse that conclusion.\n\nIII\nThe Court\xe2\x80\x99s description of \xe2\x80\x9cthe state of the law\xe2\x80\x9d at the time of Bowers only confirms that Bowers\nwas right. The Court points to Griswold v. Connecticut (1965). But that case expressly disclaimed any\nreliance on the doctrine of \xe2\x80\x9csubstantive due process,\xe2\x80\x9d and grounded the so-called \xe2\x80\x9cright to privacy\xe2\x80\x9d in\npenumbras of constitutional provisions other than the Due Process Clause. * * * *\nRoe v. Wade recognized that the right to abort an unborn child was a \xe2\x80\x9cfundamental right\xe2\x80\x9d protected\nby the Due Process Clause. The Roe Court, however, made no attempt to establish that this right\nwas \xe2\x80\x9c\xe2\x80\x98deeply rooted in this Nation\xe2\x80\x99s history and tradition\xe2\x80\x99\xe2\x80\x9d; instead, it based its conclusion that \xe2\x80\x9cthe\nFourteenth Amendment\xe2\x80\x99s concept of personal liberty . . . is broad enough to encompass a woman\xe2\x80\x99s\ndecision whether or not to terminate her pregnancy\xe2\x80\x9d on its own normative judgment that antiabortion laws were undesirable. * * * *\nIt is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition\ncriminalizing homosexual sodomy were \xe2\x80\x9cdirected at homosexual conduct as a distinct matter.\xe2\x80\x9d\nWhether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a\nmore general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is\nthat it was criminalized\xe2\x80\x94which suffices to establish that homosexual sodomy is not a right \xe2\x80\x9cdeeply\nrooted in our Nation\xe2\x80\x99s history and tradition.\xe2\x80\x9d The Court today agrees that homosexual sodomy was\ncriminalized and thus does not dispute the facts on which Bowers actually relied.\n* * * * Bowers\xe2\x80\x99 conclusion that homosexual sodomy is not a fundamental right \xe2\x80\x9cdeeply rooted in this\nNation\xe2\x80\x99s history and tradition\xe2\x80\x9d is utterly unassailable.\nRealizing that fact, the Court instead says: \xe2\x80\x9c[W]e think that our laws and traditions in the past half\ncentury are of most relevance here. These references show an emerging awareness that liberty gives\nsubstantial protection to adult persons in deciding how to conduct their private lives in matters\npertaining to sex.\xe2\x80\x9d (emphasis added). Apart from the fact that such an \xe2\x80\x9cemerging awareness\xe2\x80\x9d does\nnot establish a \xe2\x80\x9cfundamental right,\xe2\x80\x9d the statement is factually false. States continue to prosecute all\nsorts of crimes by adults \xe2\x80\x9cin matters pertaining to sex\xe2\x80\x9d: prostitution, adult incest, adultery, obscenity,\nand child pornography. Sodomy laws, too, have been enforced \xe2\x80\x9cin the past half century,\xe2\x80\x9d in which\nthere have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy.\nIn relying, for evidence of an \xe2\x80\x9cemerging recognition,\xe2\x80\x9d upon the American Law Institute\xe2\x80\x99s 1955\n558 | Liberty, Equality, and Due Process: Third Edition\n\n\x0crecommendation not to criminalize \xe2\x80\x9c\xe2\x80\x98consensual sexual relations conducted in private,\xe2\x80\x99\xe2\x80\x9d the Court\nignores the fact that this recommendation was \xe2\x80\x9ca point of resistance in most of the states that\nconsidered adopting the Model Penal Code.\xe2\x80\x9d\nIn any event, an \xe2\x80\x9cemerging awareness\xe2\x80\x9d is by definition not \xe2\x80\x9cdeeply rooted in this Nation\xe2\x80\x99s history\nand tradition[s],\xe2\x80\x9d as we have said \xe2\x80\x9cfundamental right\xe2\x80\x9d status requires. Constitutional entitlements do\nnot spring into existence because some States choose to lessen or eliminate criminal sanctions on\ncertain behavior. Much less do they spring into existence, as the Court seems to believe, because\nforeign nations decriminalize conduct. * * * * The Court\xe2\x80\x99s discussion of these foreign views (ignoring,\nof course, the many countries that have retained criminal prohibitions on sodomy) is therefore\nmeaningless dicta. Dangerous dicta, however, since \xe2\x80\x9cthis Court . . . should not impose foreign moods,\nfads, or fashions on Americans.\xe2\x80\x9d Foster v. Florida (2002) (Thomas, J., concurring in denial of certiorari).\n\nIV\nI turn now to the ground on which the Court squarely rests its holding: the contention that there\nis no rational basis for the law here under attack. This proposition is so out of accord with our\njurisprudence\xe2\x80\x94indeed, with the jurisprudence of any society we know\xe2\x80\x94that it requires little\ndiscussion.\nThe Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual\nbehavior are \xe2\x80\x9cimmoral and unacceptable,\xe2\x80\x9d\xe2\x80\x94the same interest furthered by criminal laws against\nfornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a\nlegitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it\nsays, \xe2\x80\x9cfurthers no legitimate state interest which can justify its intrusion into the personal and private\nlife of the individual\xe2\x80\x9d (emphasis added). The Court embraces instead Justice Stevens\xe2\x80\x99 declaration in\nhis Bowers dissent, that \xe2\x80\x9cthe fact that the governing majority in a State has traditionally viewed a\nparticular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.\xe2\x80\x9d\nThis effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of\nmajoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws\ncan survive rational-basis review.\n\nV\nFinally, I turn to petitioners\xe2\x80\x99 equal-protection challenge, which no Member of the Court save Justice\nO\xe2\x80\x99Connor (opinion concurring in judgment), embraces: On its face \xc2\xa7 21.06(a) applies equally to all\npersons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate\nsexual intercourse with someone of the same sex. To be sure, \xc2\xa7 21.06 does distinguish between the\nsexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the\nlaw only with other men, and women only with other women. But this cannot itself be a denial of\nequal protection, since it is precisely the same distinction regarding partner that is drawn in state\n\nCHAPTER TEN: Unenumerated Rights and Due Process | 559\n\n\x0claws prohibiting marriage with someone of the same sex while permitting marriage with someone of\nthe opposite sex.\nThe objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia (1967)\nsimilarly were applicable to whites and blacks alike, and only distinguished between the races insofar\nas the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather\nthan the usual rational-basis review, because the Virginia statute was \xe2\x80\x9cdesigned to maintain White\nSupremacy.\xe2\x80\x9d A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny,\neven a facially neutral law that makes no mention of race. See Washington v. Davis (1976). No purpose\nto discriminate against men or women as a class can be gleaned from the Texas law, so rationalbasis review applies. That review is readily satisfied here by the same rational basis that satisfied\nit in Bowers\xe2\x80\x94society\xe2\x80\x99s belief that certain forms of sexual behavior are \xe2\x80\x9cimmoral and unacceptable.\xe2\x80\x9d\nThis is the same justification that supports many other laws regulating sexual behavior that make a\ndistinction based upon the identity of the partner\xe2\x80\x94for example, laws against adultery, fornication, and\nadult incest, and laws refusing to recognize homosexual marriage. * * * *\nThis reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.\nJustice O\xe2\x80\x99Connor seeks to preserve them by the conclusory statement that \xe2\x80\x9cpreserving the traditional\ninstitution of marriage\xe2\x80\x9d is a legitimate state interest. But \xe2\x80\x9cpreserving the traditional institution of\nmarriage\xe2\x80\x9d is just a kinder way of describing the State\xe2\x80\x99s moral disapproval of same-sex couples. Texas\xe2\x80\x99s\ninterest in \xc2\xa7 21.06 could be recast in similarly euphemistic terms: \xe2\x80\x9cpreserving the traditional sexual\nmores of our society.\xe2\x80\x9d In the jurisprudence Justice O\xe2\x80\x99Connor has seemingly created, judges can\nvalidate laws by characterizing them as \xe2\x80\x9cpreserving the traditions of society\xe2\x80\x9d (good); or invalidate them\nby characterizing them as \xe2\x80\x9cexpressing moral disapproval\xe2\x80\x9d (bad).\n***\nToday\xe2\x80\x99s opinion is the product of a Court, which is the product of a law-profession culture, that has\nlargely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some\nhomosexual activists directed at eliminating the moral opprobrium that has traditionally attached\nto homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law\nSchools (to which any reputable law school must seek to belong) excludes from membership any\nschool that refuses to ban from its job-interview facilities a law firm (no matter how small) that does\nnot wish to hire as a prospective partner a person who openly engages in homosexual conduct. See\nRomer.\nOne of the most revealing statements in today\xe2\x80\x99s opinion is the Court\xe2\x80\x99s grim warning that the\ncriminalization of homosexual conduct is \xe2\x80\x9can invitation to subject homosexual persons to\ndiscrimination both in the public and in the private spheres.\xe2\x80\x9d It is clear from this that the Court\nhas taken sides in the culture war, departing from its role of assuring, as neutral observer, that the\ndemocratic rules of engagement are observed. Many Americans do not want persons who openly\nengage in homosexual conduct as partners in their business, as scoutmasters for their children,\nas teachers in their children\xe2\x80\x99s schools, or as boarders in their home. They view this as protecting\nthemselves and their families from a lifestyle that they believe to be immoral and destructive. The\nCourt views it as \xe2\x80\x9cdiscrimination\xe2\x80\x9d which it is the function of our judgments to deter. So imbued is\n560 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cthe Court with the law profession\xe2\x80\x99s anti-anti-homosexual culture, that it is seemingly unaware that\nthe attitudes of that culture are not obviously \xe2\x80\x9cmainstream\xe2\x80\x9d; that in most States what the Court calls\n\xe2\x80\x9cdiscrimination\xe2\x80\x9d against those who engage in homosexual acts is perfectly legal; that proposals to ban\nsuch \xe2\x80\x9cdiscrimination\xe2\x80\x9d under Title VII have repeatedly been rejected by Congress, see Employment\nNon-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H.R.\n5452, 94th Cong., 1st Sess. (1975); that in some cases such \xe2\x80\x9cdiscrimination\xe2\x80\x9d is mandated by federal\nstatute, see 10 U.S.C. \xc2\xa7 654(b)(1) (mandating discharge from the armed forces of any service member\nwho engages in or intends to engage in homosexual acts); and that in some cases such \xe2\x80\x9cdiscrimination\xe2\x80\x9d\nis a constitutional right, see Boy Scouts of America v. Dale (2000).\nLet me be clear that I have nothing against homosexuals, or any other group, promoting their agenda\nthrough normal democratic means. Social perceptions of sexual and other morality change over time,\nand every group has the right to persuade its fellow citizens that its view of such matters is the best.\nThat homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is\none of the few remaining States that criminalize private, consensual homosexual acts. But persuading\none\xe2\x80\x99s fellow citizens is one thing, and imposing one\xe2\x80\x99s views in absence of democratic majority will is\nsomething else. I would no more require a State to criminalize homosexual acts\xe2\x80\x94or, for that matter,\ndisplay any moral disapprobation of them\xe2\x80\x94than I would forbid it to do so. What Texas has chosen to\ndo is well within the range of traditional democratic action, and its hand should not be stayed through\nthe invention of a brand-new \xe2\x80\x9cconstitutional right\xe2\x80\x9d by a Court that is impatient of democratic change.\nIt is indeed true that \xe2\x80\x9clater generations can see that laws once thought necessary and proper in fact\nserve only to oppress,\xe2\x80\x9d and when that happens, later generations can repeal those laws. But it is the\npremise of our system that those judgments are to be made by the people, and not imposed by a\ngoverning caste that knows best.\nOne of the benefits of leaving regulation of this matter to the people rather than to the courts is\nthat the people, unlike judges, need not carry things to their logical conclusion. The people may feel\nthat their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage,\nbut not strong enough to criminalize private homosexual acts\xe2\x80\x94and may legislate accordingly. The\nCourt today pretends that it possesses a similar freedom of action, so that that we need not fear\njudicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that\nthe Canadian Government has chosen not to appeal). At the end of its opinion\xe2\x80\x94after having laid\nwaste the foundations of our rational-basis jurisprudence\xe2\x80\x94the Court says that the present case\n\xe2\x80\x9cdoes not involve whether the government must give formal recognition to any relationship that\nhomosexual persons seek to enter.\xe2\x80\x9d Do not believe it. More illuminating than this bald, unreasoned\ndisclaimer is the progression of thought displayed by an earlier passage in the Court\xe2\x80\x99s opinion, which\nnotes the constitutional protections afforded to \xe2\x80\x9cpersonal decisions relating to marriage, procreation,\ncontraception, family relationships, child rearing, and education,\xe2\x80\x9d and then declares that \xe2\x80\x9c[p]ersons in\na homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.\xe2\x80\x9d\n(emphasis added). Today\xe2\x80\x99s opinion dismantles the structure of constitutional law that has permitted a\ndistinction to be made between heterosexual and homosexual unions, insofar as formal recognition in\nmarriage is concerned. If moral disapprobation of homosexual conduct is \xe2\x80\x9cno legitimate state interest\xe2\x80\x9d\nfor purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of\nneutrality), \xe2\x80\x9c[w]hen sexuality finds overt expression in intimate conduct with another person, the\nCHAPTER TEN: Unenumerated Rights and Due Process | 561\n\n\x0cconduct can be but one element in a personal bond that is more enduring;\xe2\x80\x9d what justification could\nthere possibly be for denying the benefits of marriage to homosexual couples exercising \xe2\x80\x9c[t]he liberty\nprotected by the Constitution\xe2\x80\x9d? Surely not the encouragement of procreation, since the sterile and\nthe elderly are allowed to marry. This case \xe2\x80\x9cdoes not involve\xe2\x80\x9d the issue of homosexual marriage only if\none entertains the belief that principle and logic have nothing to do with the decisions of this Court.\nMany will hope that, as the Court comfortingly assures us, this is so.\nThe matters appropriate for this Court\xe2\x80\x99s resolution are only three: Texas\xe2\x80\x99s prohibition of sodomy\nneither infringes a \xe2\x80\x9cfundamental right\xe2\x80\x9d (which the Court does not dispute), nor is unsupported by a\nrational relation to what the Constitution considers a legitimate state interest, nor denies the equal\nprotection of the laws. I dissent.\nJUSTICE THOMAS, DISSENTING.\nI join Justice Scalia\xe2\x80\x99s dissenting opinion. I write separately to note that the law before the Court\ntoday \xe2\x80\x9cis . . . uncommonly silly.\xe2\x80\x9d Griswold v. Connecticut (1965) (Stewart, J., dissenting). If I were a\nmember of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his\nsexual preference through noncommercial consensual conduct with another adult does not appear to\nbe a worthy way to expend valuable law enforcement resources.\nNotwithstanding this, I recognize that as a member of this Court I am not empowered to help\npetitioners and others similarly situated. My duty, rather, is to \xe2\x80\x9cdecide cases \xe2\x80\x98agreeably to the\nConstitution and laws of the United States.\xe2\x80\x99\xe2\x80\x9d And, just like Justice Stewart, I \xe2\x80\x9ccan find [neither in the\nBill of Rights nor any other part of the Constitution a] general right of privacy,\xe2\x80\x9d or as the Court terms\nit today, the \xe2\x80\x9cliberty of the person both in its spatial and more transcendent dimensions.\xe2\x80\x9d\n\nCheck Your Understanding\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=43#h5p-10\n\nAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=43#h5p-11\n\n562 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cAn interactive H5P element has been excluded from this version of the text. You can view it online here:\nhttp://liberty.lawbooks.cali.org/?p=43#h5p-12\n\nNotes\n1. Be prepared to discuss the role of stare decisis in Lawrence v. Texas.\n2. Be prepared to articulate the Glucksberg test for unenumerated constitutional rights and compare\nit to the test for incorporation of enumerated rights.\n3. Do you think that the umbrella term of \xe2\x80\x9cprivacy\xe2\x80\x9d is useful to protect the rights asserted in these\ncases? Are there better terms that might be more useful? Why?\n4. A pivotal case for Lawrence as well as for the following case of Whole Woman\xe2\x80\x99s Health is Planned\nParenthood of Northeastern Pennsylvania v. Casey (1992), which the following note elaborates.\n\nNote: Casey\nFrom Roe v. Wade in 1973 until Whole Woman\xe2\x80\x99s Health in 2016, the Court considered a number of\nabortion cases including reassessments of Roe v. Wade, specific requirements and procedures, public\nfunding of abortion and reproductive health, as well as regulation of abortion protest and statements\nby providers under the First Amendment. One of the most important of these is Planned Parenthood\nof Northeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), discussed extensively in Whole Woman\xe2\x80\x99s\nHealth. In Casey, a plurality of the Court articulated the \xe2\x80\x9cundue burden\xe2\x80\x9d standard:\nA finding of an undue burden is a shorthand for the conclusion that a state regulation has\nthe purpose or effect of placing a substantial obstacle in the path of a woman seeking an\nabortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen\nby the State to further the interest in potential life must be calculated to inform the woman\xe2\x80\x99s\nfree choice, not hinder it. And a statute which, while furthering the interest in potential\nlife or some other valid state interest, has the effect of placing a substantial obstacle in the\npath of a woman\xe2\x80\x99s choice cannot be considered a permissible means of serving its legitimate\nends. * * * * Understood another way, we answer the question, left open in previous opinions\ndiscussing the undue burden formulation, whether a law designed to further the State\xe2\x80\x99s\n\nCHAPTER TEN: Unenumerated Rights and Due Process | 563\n\n\x0cinterest in fetal life which imposes an undue burden on the woman\xe2\x80\x99s decision before fetal\nviability could be constitutional.\nThe plurality also summarized its principles:\n(a) To protect the central right recognized by Roe v. Wade while at the same time\naccommodating the State\xe2\x80\x99s profound interest in potential life, we will employ the undue\nburden analysis as explained in this opinion. An undue burden exists, and therefore a provision\nof law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman\nseeking an abortion before the fetus attains viability.\n(b) We reject the rigid trimester framework of Roe v. Wade. To promote the State\xe2\x80\x99s profound\ninterest in potential life, throughout pregnancy, the State may take measures to ensure that\nthe woman\xe2\x80\x99s choice is informed, and measures designed to advance this interest will not\nbe invalidated as long as their purpose is to persuade the woman to choose childbirth over\nabortion. These measures must not be an undue burden on the right.\n(c) As with any medical procedure, the State may enact regulations to further the health or\nsafety of a woman seeking an abortion. Unnecessary health regulations that have the purpose\nor effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue\nburden on the right.\n(d) Our adoption of the undue burden analysis does not disturb the central holding of Roe v.\nWade, and we reaffirm that holding. Regardless of whether exceptions are made for particular\ncircumstances, a State may not prohibit any woman from making the ultimate decision to\nterminate her pregnancy before viability.\n(e) We also reaffirm Roe\xe2\x80\x99s holding that, subsequent to viability, the State, in promoting its\ninterest in the potentiality of human life, may, if it chooses, regulate, and even proscribe,\nabortion except where it is necessary, in appropriate medical judgment, for the preservation\nof the life or health of the mother.\nIt applied these principles to several provisions of the Pennsylvania statute, upholding the 24\nhour \xe2\x80\x9cwaiting period\xe2\x80\x9d but found the husband-notification provision unconstitutional.\nIt also reaffirmed the complex doctrine regarding minors and abortion.\n\nNote: Minors and Abortion\nThe issue of minors and abortions could be considered to be a question of a conflict of constitutional\ndue process rights. On the one hand, although minors generally have less constitutional rights than\nadults, a minor does have substantive due process rights including a right to reproductive health care\nincluding abortion. On the other hand, the substantive due process right of parents to \xe2\x80\x9ccare, custody,\nand control\xe2\x80\x9d of their children is implicated.\n\n564 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cState statutes that require a minor to seek parental consent or to require parental notification before\naccessing abortion have come before the Court numerous times. The Court has struggled to develop\ndoctrine that accommodates the constitutional interests of both minors and parents, resulting in what\nis often known as the Bellotti standard, after Bellotti v. Baird (Bellotti II), 443 U.S. 622 (1979).\nEssentially, the doctrine is this:\nIf a state chooses to require parental consent or notification (which the Court has said are the same\nregarding minors), the state must also allow the minor to \xe2\x80\x9cbypass\xe2\x80\x9d this requirement through a judicial\nprocess.\nThis judicial process, which must protect the minor\xe2\x80\x99s anonymity and be expeditious, must allow the\nminor to prove either\n\xe2\x80\xa2 she is sufficiently mature to make the decision without her parents,\nor\n\xe2\x80\xa2 she is not sufficiently mature, but the abortion is in her best interest.\n\nWhole Woman\xe2\x80\x99s Health v. Hellerstedt\n579 U.S. ___ (2016)\nBREYER, J., DELIVERED THE OPINION OF THE COURT, IN WHICH KENNEDY, GINSBURG, SOTOMAYOR, AND KAGAN JJ.,\nJOINED. GINSBURG, J., FILED A CONCURRING OPINION. THOMAS, J., FILED A DISSENTING OPINION. ALITO, J., FILED A\nDISSENTING OPINION, IN WHICH ROBERTS, C.J., AND THOMAS, J., JOINED.\nJUSTICE BREYER DELIVERED THE OPINION OF THE COURT.\nIn Planned Parenthood of Southeastern Pa. v. Casey (1992), a plurality of the Court concluded that\nthere \xe2\x80\x9cexists\xe2\x80\x9d an \xe2\x80\x9cundue burden\xe2\x80\x9d on a woman\xe2\x80\x99s right to decide to have an abortion, and consequently\na provision of law is constitutionally invalid, if the \xe2\x80\x9cpurpose or effect\xe2\x80\x9d of the provision \xe2\x80\x9cis to place a\nsubstantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.\xe2\x80\x9d\n(Emphasis added.) The plurality added that \xe2\x80\x9c[u]nnecessary health regulations that have the purpose or\neffect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden\non the right.\xe2\x80\x9d\nWe must here decide whether two provisions of Texas\xe2\x80\x99 House Bill 2 violate the Federal Constitution\nas interpreted in Casey. The first provision, which we shall call the \xe2\x80\x9cadmitting-privileges requirement,\xe2\x80\x9d\nsays that\n\xe2\x80\x9c[a] physician performing or inducing an abortion \xe2\x80\xa6 must, on the date the abortion is\nCHAPTER TEN: Unenumerated Rights and Due Process | 565\n\n\x0cperformed or induced, have active admitting privileges at a hospital that \xe2\x80\xa6 is located not\nfurther than 30 miles from the location at which the abortion is performed or induced.\xe2\x80\x9d\nTex. Health & Safety Code Ann. \xc2\xa7 171.0031(a) (West Cum. Supp. 2015).\nThis provision amended Texas law that had previously required an abortion facility to maintain a\nwritten protocol \xe2\x80\x9cfor managing medical emergencies and the transfer of patients requiring further\nemergency care to a hospital.\xe2\x80\x9d 38 Tex. Reg. 6546 (2013).\nThe second provision, which we shall call the \xe2\x80\x9csurgical-center requirement,\xe2\x80\x9d says that\n\xe2\x80\x9cthe minimum standards for an abortion facility must be equivalent to the minimum standards\nadopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.\xe2\x80\x9d\nTex. Health & Safety Code Ann. \xc2\xa7 245.010(a).\nWe conclude that neither of these provisions confers medical benefits sufficient to justify the burdens\nupon access that each imposes. Each places a substantial obstacle in the path of women seeking a\npreviability abortion, each constitutes an undue burden on abortion access, Casey (plurality opinion),\nand each violates the Federal Constitution. Amdt. 14, \xc2\xa7 1.\n\nI\nA\nIn July 2013, the Texas Legislature enacted House Bill 2 (H.B. 2 or Act). In September (before the\nnew law took effect), a group of Texas abortion providers filed an action in Federal District Court\nseeking facial invalidation of the law\xe2\x80\x99s admitting-privileges provision. In late October, the District\nCourt granted the injunction. But three days later, the Fifth Circuit vacated the injunction, thereby\npermitting the provision to take effect.\nThe Fifth Circuit subsequently upheld the provision, and set forth its reasons in an opinion released\nlate the following March. In that opinion, the Fifth Circuit pointed to evidence introduced in the\nDistrict Court the previous October. It noted that Texas had offered evidence designed to show that\nthe admitting-privileges requirement \xe2\x80\x9cwill reduce the delay in treatment and decrease health risk for\nabortion patients with critical complications,\xe2\x80\x9d and that it would \xe2\x80\x9c\xe2\x80\x98screen out\xe2\x80\x99 untrained or incompetent\nabortion providers.\xe2\x80\x9d (Abbott). The opinion also explained that the plaintiffs had not provided sufficient\nevidence \xe2\x80\x9cthat abortion practitioners will likely be unable to comply with the privileges requirement.\xe2\x80\x9d\nThe court said that all \xe2\x80\x9cof the major Texas cities, including Austin, Corpus Christi, Dallas, El Paso,\nHouston, and San Antonio,\xe2\x80\x9d would \xe2\x80\x9ccontinue to have multiple clinics where many physicians will have\nor obtain hospital admitting privileges.\xe2\x80\x9d The Abbott plaintiffs did not file a petition for certiorari in this\nCourt.\n\n566 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cB\nOn April 6, one week after the Fifth Circuit\xe2\x80\x99s decision, petitioners, a group of abortion providers\n(many of whom were plaintiffs in the previous lawsuit), filed the present lawsuit in Federal District\nCourt. They sought an injunction preventing enforcement of the admitting-privileges provision as\napplied to physicians at two abortion facilities, one operated by Whole Woman\xe2\x80\x99s Health in McAllen\nand the other operated by Nova Health Systems in El Paso. They also sought an injunction prohibiting\nenforcement of the surgical-center provision anywhere in Texas. They claimed that the admittingprivileges provision and the surgical-center provision violated the Constitution\xe2\x80\x99s Fourteenth\nAmendment, as interpreted in Casey.\nThe District Court subsequently received stipulations from the parties and depositions from the\nparties\xe2\x80\x99 experts. The court conducted a 4\xe2\x80\x93day bench trial. It heard, among other testimony, the\nopinions from expert witnesses for both sides. On the basis of the stipulations, depositions, and\ntestimony, that court reached the following conclusions:\n1. Of Texas\xe2\x80\x99 population of more than 25 million people, \xe2\x80\x9capproximately 5.4 million\xe2\x80\x9d are \xe2\x80\x9cwomen\xe2\x80\x9d of\n\xe2\x80\x9creproductive age,\xe2\x80\x9d living within a geographical area of \xe2\x80\x9cnearly 280,000 square miles.\xe2\x80\x9d\n2. \xe2\x80\x9cIn recent years, the number of abortions reported in Texas has stayed fairly consistent at\napproximately 15\xe2\x80\x9316% of the reported pregnancy rate, for a total number of approximately\n60,000\xe2\x80\x9372,000 legal abortions performed annually.\xe2\x80\x9d\n3. Prior to the enactment of H.B. 2, there were more than 40 licensed abortion facilities in Texas,\nwhich \xe2\x80\x9cnumber dropped by almost half leading up to and in the wake of enforcement of the admittingprivileges requirement that went into effect in late-October 2013.\xe2\x80\x9d\n4. If the surgical-center provision were allowed to take effect, the number of abortion facilities, after\nSeptember 1, 2014, would be reduced further, so that \xe2\x80\x9conly seven facilities and a potential eighth will\nexist in Texas.\xe2\x80\x9d\n5. Abortion facilities \xe2\x80\x9cwill remain only in Houston, Austin, San Antonio, and the Dallas/Fort Worth\nmetropolitan region.\xe2\x80\x9d These include \xe2\x80\x9cone facility in Austin, two in Dallas, one in Fort Worth, two in\nHouston, and either one or two in San Antonio.\xe2\x80\x9d\n6. \xe2\x80\x9cBased on historical data pertaining to Texas\xe2\x80\x99s average number of abortions, and assuming perfectly\nequal distribution among the remaining seven or eight providers, this would result in each facility\nserving between 7,500 and 10,000 patients per year. Accounting for the seasonal variations in\npregnancy rates and a slightly unequal distribution of patients at each clinic, it is foreseeable that over\n1,200 women per month could be vying for counseling, appointments, and follow-up visits at some of\nthese facilities.\xe2\x80\x9d\n7. The suggestion \xe2\x80\x9cthat these seven or eight providers could meet the demand of the entire state\nstretches credulity.\xe2\x80\x9d\n8. \xe2\x80\x9cBetween November 1, 2012 and May 1, 2014,\xe2\x80\x9d that is, before and after enforcement of the admittingCHAPTER TEN: Unenumerated Rights and Due Process | 567\n\n\x0cprivileges requirement, \xe2\x80\x9cthe decrease in geographical distribution of abortion facilities\xe2\x80\x9d has meant\nthat the number of women of reproductive age living more than 50 miles from a clinic has doubled\n(from 800,000 to over 1.6 million); those living more than 100 miles has increased by 150% (from\n400,000 to 1 million); those living more than 150 miles has increased by more than 350% (from 86,000\nto 400,000); and those living more than 200 miles has increased by about 2,800% (from 10,000 to\n290,000). After September 2014, should the surgical-center requirement go into effect, the number\nof women of reproductive age living significant distances from an abortion provider will increase as\nfollows: 2 million women of reproductive age will live more than 50 miles from an abortion provider;\n1.3 million will live more than 100 miles from an abortion provider; 900,000 will live more than 150\nmiles from an abortion provider; and 750,000 more than 200 miles from an abortion provider.\n9. The \xe2\x80\x9ctwo requirements erect a particularly high barrier for poor, rural, or disadvantaged women.\xe2\x80\x9d\n10. \xe2\x80\x9cThe great weight of evidence demonstrates that, before the act\xe2\x80\x99s passage, abortion in Texas was\nextremely safe with particularly low rates of serious complications and virtually no deaths occurring\non account of the procedure.\xe2\x80\x9d\n11. \xe2\x80\x9cAbortion, as regulated by the State before the enactment of House Bill 2, has been shown to be\nmuch safer, in terms of minor and serious complications, than many common medical procedures\nnot subject to such intense regulation and scrutiny.\xe2\x80\x9d e.g., colonoscopies, vasectomy and endometrial\nbiopsy, plastic surgery.\n12. \xe2\x80\x9cAdditionally, risks are not appreciably lowered for patients who undergo abortions at ambulatory\nsurgical centers as compared to nonsurgical-center facilities.\xe2\x80\x9d\n13. \xe2\x80\x9c[W]omen will not obtain better care or experience more frequent positive outcomes at an\nambulatory surgical center as compared to a previously licensed facility.\xe2\x80\x9d\n14. \xe2\x80\x9c[T]here are 433 licensed ambulatory surgical centers in Texas,\xe2\x80\x9d of which \xe2\x80\x9c336 \xe2\x80\xa6 are apparently\neither \xe2\x80\x98grandfathered\xe2\x80\x99 or enjo[y] the benefit of a waiver of some or all\xe2\x80\x9d of the surgical-center\n\xe2\x80\x9crequirements.\xe2\x80\x9d\n15. The \xe2\x80\x9ccost of coming into compliance\xe2\x80\x9d with the surgical-center requirement \xe2\x80\x9cfor existing clinics\nis significant,\xe2\x80\x9d \xe2\x80\x9cundisputedly approach[ing] 1 million dollars,\xe2\x80\x9d and \xe2\x80\x9cmost likely exceed[ing] 1.5 million\ndollars,\xe2\x80\x9d with \xe2\x80\x9c[s]ome \xe2\x80\xa6 clinics\xe2\x80\x9d unable to \xe2\x80\x9ccomply due to physical size limitations of their sites.\xe2\x80\x9d The\n\xe2\x80\x9ccost of acquiring land and constructing a new compliant clinic will likely exceed three million dollars.\xe2\x80\x9d\nOn the basis of these and other related findings, the District Court determined that the surgicalcenter requirement \xe2\x80\x9cimposes an undue burden on the right of women throughout Texas to seek\na previability abortion,\xe2\x80\x9d and that the \xe2\x80\x9cadmitting-privileges requirement, \xe2\x80\xa6 in conjunction with the\nambulatory-surgical-center requirement, imposes an undue burden on the right of women in the Rio\nGrande Valley, El Paso, and West Texas to seek a previability abortion.\xe2\x80\x9d The District Court concluded\nthat the \xe2\x80\x9ctwo provisions\xe2\x80\x9d would cause \xe2\x80\x9cthe closing of almost all abortion clinics in Texas that were\noperating legally in the fall of 2013,\xe2\x80\x9d and thereby create a constitutionally \xe2\x80\x9cimpermissible obstacle as\napplied to all women seeking a previability abortion\xe2\x80\x9d by \xe2\x80\x9crestricting access to previously available legal\nfacilities.\xe2\x80\x9d On August 29, 2014, the court enjoined the enforcement of the two provisions.\n568 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cC\nOn October 2, 2014, at Texas\xe2\x80\x99 request, the Court of Appeals stayed the District Court\xe2\x80\x99s injunction.\nWithin the next two weeks, this Court vacated the Court of Appeals\xe2\x80\x99 stay (in substantial part) thereby\nleaving in effect the District Court\xe2\x80\x99s injunction against enforcement of the surgical-center provision\nand its injunction against enforcement of the admitting-privileges requirement as applied to the\nMcAllen and El Paso clinics. The Court of Appeals then heard Texas\xe2\x80\x99 appeal.\nOn June 9, 2015, the Court of Appeals reversed the District Court on the merits. With minor\nexceptions, it found both provisions constitutional and allowed them to take effect. Because the Court\nof Appeals\xe2\x80\x99 decision rests upon alternative grounds and fact-related considerations, we set forth its\nbasic reasoning in some detail. The Court of Appeals concluded:\n\xe2\x80\xa2 The District Court was wrong to hold the admitting-privileges requirement unconstitutional\nbecause (except for the clinics in McAllen and El Paso) the providers had not asked them to do so, and\nprinciples of res judicata barred relief.\n\xe2\x80\xa2 Because the providers could have brought their constitutional challenge to the surgical-center\nprovision in their earlier lawsuit, principles of res judicata also barred that claim.\n\xe2\x80\xa2 In any event, a state law \xe2\x80\x9cregulating previability abortion is constitutional if: (1) it does not have the\npurpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a\nnonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest.\xe2\x80\x9d\n\xe2\x80\xa2 \xe2\x80\x9c[B]oth the admitting privileges requirement and\xe2\x80\x9d the surgical-center requirement \xe2\x80\x9cwere rationally\nrelated to a legitimate state interest,\xe2\x80\x9d namely, \xe2\x80\x9crais[ing] the standard and quality of care for women\nseeking abortions and \xe2\x80\xa6 protect[ing] the health and welfare of women seeking abortions.\xe2\x80\x9d\n\xe2\x80\xa2 The \xe2\x80\x9c[p]laintiffs\xe2\x80\x9d failed \xe2\x80\x9cto proffer competent evidence contradicting the legislature\xe2\x80\x99s statement of a\nlegitimate purpose.\xe2\x80\x9d\n\xe2\x80\xa2 \xe2\x80\x9c[T]he district court erred by substituting its own judgment [as to the provisions\xe2\x80\x99 effects] for that of\nthe legislature, albeit \xe2\x80\xa6 in the name of the undue burden inquiry.\xe2\x80\x9d\n\xe2\x80\xa2 Holding the provisions unconstitutional on their face is improper because the plaintiffs had failed to\nshow that either of the provisions \xe2\x80\x9cimposes an undue burden on a large fraction of women.\xe2\x80\x9d\n\xe2\x80\xa2 The District Court erred in finding that, if the surgical-center requirement takes effect, there will\nbe too few abortion providers in Texas to meet the demand. That factual determination was based\nupon the finding of one of plaintiffs\xe2\x80\x99 expert witnesses (Dr. Grossman) that abortion providers in Texas\n\xe2\x80\x9c\xe2\x80\x98will not be able to go from providing approximately 14,000 abortions annually, as they currently are,\nto providing the 60,000 to 70,000 abortions that are done each year in Texas once all\xe2\x80\x99 \xe2\x80\x9d of the clinics\nfailing to meet the surgical-center requirement \xe2\x80\x9c \xe2\x80\x98are forced to close.\xe2\x80\x99\xe2\x80\x9d But Dr. Grossman\xe2\x80\x99s opinion\nis (in the Court of Appeals\xe2\x80\x99 view) \xe2\x80\x9c\xe2\x80\x98ipse dixit\xe2\x80\x99 \xe2\x80\x9d; the \xe2\x80\x9c \xe2\x80\x98record lacks any actual evidence regarding the\ncurrent or future capacity of the eight clinics\xe2\x80\x99 \xe2\x80\x9d; and there is no \xe2\x80\x9cevidence in the record that\xe2\x80\x9d the\n\nCHAPTER TEN: Unenumerated Rights and Due Process | 569\n\n\x0cproviders that currently meet the surgical-center requirement \xe2\x80\x9care operating at full capacity or that\nthey cannot increase capacity.\xe2\x80\x9d\nFor these and related reasons, the Court of Appeals reversed the District Court\xe2\x80\x99s holding that the\nadmitting-privileges requirement is unconstitutional and its holding that the surgical-center\nrequirement is unconstitutional. The Court of Appeals upheld in part the District Court\xe2\x80\x99s more\nspecific holding that the requirements are unconstitutional as applied to the McAllen facility and Dr.\nLynn (a doctor at that facility), but it reversed the District Court\xe2\x80\x99s holding that the surgical-center\nrequirement is unconstitutional as applied to the facility in El Paso. In respect to this last claim, the\nCourt of Appeals said that women in El Paso wishing to have an abortion could use abortion providers\nin nearby New Mexico.\n\nII\nBefore turning to the constitutional question, we must consider the Court of Appeals\xe2\x80\x99 procedural\ngrounds for holding that (but for the challenge to the provisions of H.B. 2 as applied to McAllen and El\nPaso) petitioners were barred from bringing their constitutional challenges. * * * *\n{The Court held that there was no claim preclusion}.\n\nIII\nUndue Burden\xe2\x80\x94Legal Standard\nWe begin with the standard, as described in Casey. We recognize that the \xe2\x80\x9cState has a legitimate\ninterest in seeing to it that abortion, like any other medical procedure, is performed under\ncircumstances that insure maximum safety for the patient.\xe2\x80\x9d Roe v. Wade (1973). But, we added, \xe2\x80\x9ca\nstatute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle\nin the path of a woman\xe2\x80\x99s choice cannot be considered a permissible means of serving its legitimate\nends.\xe2\x80\x9d Casey (plurality opinion). Moreover, \xe2\x80\x9c[u]nnecessary health regulations that have the purpose or\neffect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden\non the right.\xe2\x80\x9d\nThe Court of Appeals wrote that a state law is \xe2\x80\x9cconstitutional if: (1) it does not have the purpose or\neffect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus;\nand (2) it is reasonably related to (or designed to further) a legitimate state interest.\xe2\x80\x9d The Court of\nAppeals went on to hold that \xe2\x80\x9cthe district court erred by substituting its own judgment for that of\nthe legislature\xe2\x80\x9d when it conducted its \xe2\x80\x9cundue burden inquiry,\xe2\x80\x9d in part because \xe2\x80\x9cmedical uncertainty\nunderlying a statute is for resolution by legislatures, not the courts.\xe2\x80\x9d (citing Gonzales v. Carhart (2007)).\nThe Court of Appeals\xe2\x80\x99 articulation of the relevant standard is incorrect. The first part of the Court\nof Appeals\xe2\x80\x99 test may be read to imply that a district court should not consider the existence or\nnonexistence of medical benefits when considering whether a regulation of abortion constitutes an\n570 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cundue burden. The rule announced in Casey, however, requires that courts consider the burdens a\nlaw imposes on abortion access together with the benefits those laws confer. See (opinion of the\nCourt) (performing this balancing with respect to a spousal notification provision); (joint opinion of\nO\xe2\x80\x99Connor, Kennedy, and Souter, JJ.) (same balancing with respect to a parental notification provision).\nAnd the second part of the test is wrong to equate the judicial review applicable to the regulation of\na constitutionally protected personal liberty with the less strict review applicable where, for example,\neconomic legislation is at issue. See, e.g., Williamson v. Lee Optical of Okla., Inc. (1955). The Court of\nAppeals\xe2\x80\x99 approach simply does not match the standard that this Court laid out in Casey, which asks\ncourts to consider whether any burden imposed on abortion access is \xe2\x80\x9cundue.\xe2\x80\x9d\nThe statement that legislatures, and not courts, must resolve questions of medical uncertainty is also\ninconsistent with this Court\xe2\x80\x99s case law. Instead, the Court, when determining the constitutionality of\nlaws regulating abortion procedures, has placed considerable weight upon evidence and argument\npresented in judicial proceedings. In Casey, for example, we relied heavily on the District Court\xe2\x80\x99s\nfactual findings and the research-based submissions of amici in declaring a portion of the law at issue\nunconstitutional (opinion of the Court) (discussing evidence related to the prevalence of spousal abuse\nin determining that a spousal notification provision erected an undue burden to abortion access).\nAnd, in Gonzales the Court, while pointing out that we must review legislative \xe2\x80\x9cfactfinding under a\ndeferential standard,\xe2\x80\x9d added that we must not \xe2\x80\x9cplace dispositive weight\xe2\x80\x9d on those \xe2\x80\x9cfindings.\xe2\x80\x9d Gonzales\nwent on to point out that the \xe2\x80\x9cCourt retains an independent constitutional duty to review factual\nfindings where constitutional rights are at stake.\xe2\x80\x9d (emphasis added). Although there we upheld a statute\nregulating abortion, we did not do so solely on the basis of legislative findings explicitly set forth in\nthe statute, noting that \xe2\x80\x9cevidence presented in the District Courts contradicts\xe2\x80\x9d some of the legislative\nfindings. In these circumstances, we said, \xe2\x80\x9c[u]ncritical deference to Congress\xe2\x80\x99 factual findings . . . is\ninappropriate.\xe2\x80\x9d\nUnlike in Gonzales, the relevant statute here does not set forth any legislative findings. Rather,\none is left to infer that the legislature sought to further a constitutionally acceptable objective\n(namely, protecting women\xe2\x80\x99s health). For a district court to give significant weight to evidence in\nthe judicial record in these circumstances is consistent with this Court\xe2\x80\x99s case law. As we shall\ndescribe, the District Court did so here. It did not simply substitute its own judgment for that of\nthe legislature. It considered the evidence in the record\xe2\x80\x94including expert evidence, presented in\nstipulations, depositions, and testimony. It then weighed the asserted benefits against the burdens.\nWe hold that, in so doing, the District Court applied the correct legal standard.\n\nIV\nUndue Burden\xe2\x80\x94Admitting\xe2\x80\x93Privileges Requirement\nTurning to the lower courts\xe2\x80\x99 evaluation of the evidence, we first consider the admitting-privileges\nrequirement. Before the enactment of H.B. 2, doctors who provided abortions were required to \xe2\x80\x9chave\nadmitting privileges or have a working arrangement with a physician(s) who has admitting privileges\nat a local hospital in order to ensure the necessary back up for medical complications.\xe2\x80\x9d Tex. Admin.\nCHAPTER TEN: Unenumerated Rights and Due Process | 571\n\n\x0cCode, tit. 25, \xc2\xa7 139.56 (2009) (emphasis added). The new law changed this requirement by requiring\nthat a \xe2\x80\x9cphysician performing or inducing an abortion . . . must, on the date the abortion is performed\nor induced, have active admitting privileges at a hospital that \xe2\x80\xa6 is located not further than 30 miles\nfrom the location at which the abortion is performed or induced.\xe2\x80\x9d Tex. Health & Safety Code Ann.\n\xc2\xa7 171.0031(a). The District Court held that the legislative change imposed an \xe2\x80\x9cundue burden\xe2\x80\x9d on a\nwoman\xe2\x80\x99s right to have an abortion. We conclude that there is adequate legal and factual support for\nthe District Court\xe2\x80\x99s conclusion.\nThe purpose of the admitting-privileges requirement is to help ensure that women have easy access to\na hospital should complications arise during an abortion procedure. But the District Court found that\nit brought about no such health-related benefit. The court found that \xe2\x80\x9c[t]he great weight of evidence\ndemonstrates that, before the act\xe2\x80\x99s passage, abortion in Texas was extremely safe with particularly low\nrates of serious complications and virtually no deaths occurring on account of the procedure.\xe2\x80\x9d Thus,\nthere was no significant health-related problem that the new law helped to cure.\nThe evidence upon which the court based this conclusion included, among other things:\n\xe2\x80\xa2 A collection of at least five peer-reviewed studies on abortion complications in the first trimester,\nshowing that the highest rate of major complications\xe2\x80\x94including those complications requiring\nhospital admission\xe2\x80\x94was less than one-quarter of 1%.\n\xe2\x80\xa2 Figures in three peer-reviewed studies showing that the highest complication rate found for the\nmuch rarer second trimester abortion was less than one-half of 1% (0.45% or about 1 out of about 200).\n\xe2\x80\xa2 Expert testimony to the effect that complications rarely require hospital admission, much less\nimmediate transfer to a hospital from an outpatient clinic (citing a study of complications occurring\nwithin six weeks after 54,911 abortions that had been paid for by the fee-for-service California\nMedicaid Program finding that the incidence of complications was 2.1%, the incidence of\ncomplications requiring hospital admission was 0.23%, and that of the 54,911 abortion patients\nincluded in the study, only 15 required immediate transfer to the hospital on the day of the abortion).\n\xe2\x80\xa2 Expert testimony stating that \xe2\x80\x9cit is extremely unlikely that a patient will experience a serious\ncomplication at the clinic that requires emergent hospitalization\xe2\x80\x9d and \xe2\x80\x9cin the rare case in which [one\ndoes], the quality of care that the patient receives is not affected by whether the abortion provider\nhas admitting privileges at the hospital.\xe2\x80\x9d\n\xe2\x80\xa2 Expert testimony stating that in respect to surgical abortion patients who do suffer complications\nrequiring hospitalization, most of these complications occur in the days after the abortion, not on the\nspot.\n\xe2\x80\xa2 Expert testimony stating that a delay before the onset of complications is also expected for medical\nabortions, as \xe2\x80\x9cabortifacient drugs take time to exert their effects, and thus the abortion itself almost\nalways occurs after the patient has left the abortion facility.\xe2\x80\x9d\n\xe2\x80\xa2 Some experts added that, if a patient needs a hospital in the day or week following her abortion, she\nwill likely seek medical attention at the hospital nearest her home.\n572 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cWe have found nothing in Texas\xe2\x80\x99 record evidence that shows that, compared to prior law (which\nrequired a \xe2\x80\x9cworking arrangement\xe2\x80\x9d with a doctor with admitting privileges), the new law advanced\nTexas\xe2\x80\x99 legitimate interest in protecting women\xe2\x80\x99s health.\nWe add that, when directly asked at oral argument whether Texas knew of a single instance in which\nthe new requirement would have helped even one woman obtain better treatment, Texas admitted\nthat there was no evidence in the record of such a case. See Tr. of Oral Arg. 47. This answer is\nconsistent with the findings of the other Federal District Courts that have considered the health\nbenefits of other States\xe2\x80\x99 similar admitting-privileges laws. See Planned Parenthood of Wis., Inc. v. Van\nth\n\nHollen (W.D.Wis.2015), aff\xe2\x80\x99d sub nom. Planned Parenthood of Wis., Inc. v. Schimel (7\n\nCir. 2015); Planned\n\nParenthood Southeast, Inc. v. Strange, (M.D.Ala.2014).\nAt the same time, the record evidence indicates that the admitting-privileges requirement places a\n\xe2\x80\x9csubstantial obstacle in the path of a woman\xe2\x80\x99s choice.\xe2\x80\x9d Casey (plurality opinion). The District Court\nfound, as of the time the admitting-privileges requirement began to be enforced, the number of\nfacilities providing abortions dropped in half, from about 40 to about 20. Eight abortion clinics\nclosed in the months leading up to the requirement\xe2\x80\x99s effective date. Cf. Brief for Planned Parenthood\nFederation of America et al. as Amici Curiae (noting that abortion facilities in Waco, San Angelo,\nand Midland no longer operate because Planned Parenthood is \xe2\x80\x9cunable to find local physicians in\nthose communities with privileges who are willing to provide abortions due to the size of those\ncommunities and the hostility that abortion providers face\xe2\x80\x9d). Eleven more closed on the day the\nadmitting-privileges requirement took effect.\nOther evidence helps to explain why the new requirement led to the closure of clinics. We read\nthat other evidence in light of a brief filed in this Court by the Society of Hospital Medicine. That\nbrief describes the undisputed general fact that \xe2\x80\x9chospitals often condition admitting privileges on\nreaching a certain number of admissions per year.\xe2\x80\x9d Brief for Society of Hospital Medicine et al. as\nAmici Curiae. Returning to the District Court record, we note that, in direct testimony, the president\nof Nova Health Systems, implicitly relying on this general fact, pointed out that it would be difficult for\ndoctors regularly performing abortions at the El Paso clinic to obtain admitting privileges at nearby\nhospitals because \xe2\x80\x9c[d]uring the past 10 years, over 17,000 abortion procedures were performed at\nthe El Paso clinic [and n]ot a single one of those patients had to be transferred to a hospital for\nemergency treatment, much less admitted to the hospital.\xe2\x80\x9d In a word, doctors would be unable to\nmaintain admitting privileges or obtain those privileges for the future, because the fact that abortions\nare so safe meant that providers were unlikely to have any patients to admit.\nOther amicus briefs filed here set forth without dispute other common prerequisites to obtaining\nadmitting privileges that have nothing to do with ability to perform medical procedures. See Brief for\nMedical Staff Professionals as Amici Curiae (listing, for example, requirements that an applicant has\ntreated a high number of patients in the hospital setting in the past year, clinical data requirements,\nresidency requirements, and other discretionary factors); see also Brief for American College of\nObstetricians and Gynecologists et al. as Amici Curiae (ACOG Brief) (\xe2\x80\x9c[S]ome academic hospitals will\nonly allow medical staff membership for clinicians who also \xe2\x80\xa6 accept faculty appointments\xe2\x80\x9d). Again,\nreturning to the District Court record, we note that Dr. Lynn of the McAllen clinic, a veteran obstetrics\nCHAPTER TEN: Unenumerated Rights and Due Process | 573\n\n\x0cand gynecology doctor who estimates that he has delivered over 15,000 babies in his 38 years in\npractice was unable to get admitting privileges at any of the seven hospitals within 30 miles of his\nclinic. He was refused admitting privileges at a nearby hospital for reasons, as the hospital wrote, \xe2\x80\x9cnot\nbased on clinical competence considerations.\xe2\x80\x9d The admitting-privileges requirement does not serve\nany relevant credentialing function.\nIn our view, the record contains sufficient evidence that the admitting-privileges requirement led\nto the closure of half of Texas\xe2\x80\x99 clinics, or thereabouts. Those closures meant fewer doctors, longer\nwaiting times, and increased crowding. Record evidence also supports the finding that after the\nadmitting-privileges provision went into effect, the \xe2\x80\x9cnumber of women of reproductive age living in\na county \xe2\x80\xa6 more than 150 miles from a provider increased from approximately 86,000 to 400,000 \xe2\x80\xa6\nand the number of women living in a county more than 200 miles from a provider from approximately\n10,000 to 290,000.\xe2\x80\x9d We recognize that increased driving distances do not always constitute an \xe2\x80\x9cundue\nburden.\xe2\x80\x9d See Casey (joint opinion of O\xe2\x80\x99Connor, Kennedy, and Souter, JJ.). But here, those increases\nare but one additional burden, which, when taken together with others that the closings brought\nabout, and when viewed in light of the virtual absence of any health benefit, lead us to conclude that\nthe record adequately supports the District Court\xe2\x80\x99s \xe2\x80\x9cundue burden\xe2\x80\x9d conclusion. Casey (opinion of the\nCourt) (finding burden \xe2\x80\x9cundue\xe2\x80\x9d when requirement places \xe2\x80\x9csubstantial obstacle to a woman\xe2\x80\x99s choice\xe2\x80\x9d\nin \xe2\x80\x9ca large fraction of the cases in which\xe2\x80\x9d it \xe2\x80\x9cis relevant\xe2\x80\x9d).\nThe dissent\xe2\x80\x99s only argument why these clinic closures, as well as the ones discussed in Part V, may\nnot have imposed an undue burden is this: Although \xe2\x80\x9cH.B. 2 caused the closure of some clinics,\xe2\x80\x9d post,\nat 2343 (emphasis added), other clinics may have closed for other reasons (so we should not \xe2\x80\x9cactually\ncount\xe2\x80\x9d the burdens resulting from those closures against H.B. 2). But petitioners satisfied their burden\nto present evidence of causation by presenting direct testimony as well as plausible inferences to be\ndrawn from the timing of the clinic closures. The District Court credited that evidence and concluded\nfrom it that H.B. 2 in fact led to the clinic closures. The dissent\xe2\x80\x99s speculation that perhaps other\nevidence, not presented at trial or credited by the District Court, might have shown that some clinics\nclosed for unrelated reasons does not provide sufficient ground to disturb the District Court\xe2\x80\x99s factual\nfinding on that issue.\nIn the same breath, the dissent suggests that one benefit of H.B. 2\xe2\x80\x99s requirements would be that\nthey might \xe2\x80\x9cforce unsafe facilities to shut down.\xe2\x80\x9d To support that assertion, the dissent points to the\nKermit Gosnell scandal. Gosnell, a physician in Pennsylvania, was convicted of first-degree murder\nand manslaughter. He \xe2\x80\x9cstaffed his facility with unlicensed and indifferent workers, and then let them\npractice medicine unsupervised\xe2\x80\x9d and had \xe2\x80\x9c[d]irty facilities; unsanitary instruments; an absence of\nfunctioning monitoring and resuscitation equipment; the use of cheap, but dangerous, drugs; illegal\nprocedures; and inadequate emergency access for when things inevitably went wrong.\xe2\x80\x9d Gosnell\xe2\x80\x99s\nbehavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would\nhave affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety\nmeasures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.\nRegardless, Gosnell\xe2\x80\x99s deplorable crimes could escape detection only because his facility went\nuninspected for more than 15 years. Pre-existing Texas law already contained numerous detailed\nregulations covering abortion facilities, including a requirement that facilities be inspected at least\n574 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cannually. The record contains nothing to suggest that H.B. 2 would be more effective than pre-existing\nTexas law at deterring wrongdoers like Gosnell from criminal behavior.\n\nV\nUndue Burden\xe2\x80\x94Surgical\xe2\x80\x93Center Requirement\nThe second challenged provision of Texas\xe2\x80\x99 new law sets forth the surgical-center requirement. Prior\nto enactment of the new requirement, Texas law required abortion facilities to meet a host of\nhealth and safety requirements. Under those pre-existing laws, facilities were subject to annual\nreporting and recordkeeping requirements; a quality assurance program; personnel policies and\nstaffing requirements; physical and environmental requirements; infection control standards;\ndisclosure requirements; patient-rights standards; and medical- and clinical-services standards,\nincluding anesthesia standards. These requirements are policed by random and announced\ninspections, at least annually, as well as administrative penalties, injunctions, civil penalties, and\ncriminal penalties for certain violations.\nH.B. 2 added the requirement that an \xe2\x80\x9cabortion facility\xe2\x80\x9d meet the \xe2\x80\x9cminimum standards \xe2\x80\xa6 for\nambulatory surgical centers\xe2\x80\x9d under Texas law. The surgical-center regulations include, among other\nthings, detailed specifications relating to the size of the nursing staff, building dimensions, and other\nbuilding requirements. The nursing staff must comprise at least \xe2\x80\x9can adequate number of [registered\nnurses] on duty to meet the following minimum staff requirements: director of the department\n(or designee), and supervisory and staff personnel for each service area to assure the immediate\navailability of [a registered nurse] for emergency care or for any patient when needed,\xe2\x80\x9d as well\nas \xe2\x80\x9ca second individual on duty on the premises who is trained and currently certified in basic\ncardiac life support until all patients have been discharged from the facility\xe2\x80\x9d for facilities that provide\nmoderate sedation, such as most abortion facilities. Facilities must include a full surgical suite with\nan operating room that has \xe2\x80\x9ca clear floor area of at least 240 square feet\xe2\x80\x9d in which \xe2\x80\x9c[t]he minimum\nclear dimension between built-in cabinets, counters, and shelves shall be 14 feet.\xe2\x80\x9d There must be a\npreoperative patient holding room and a postoperative recovery suite. The former \xe2\x80\x9cshall be provided\nand arranged in a one-way traffic pattern so that patients entering from outside the surgical suite\ncan change, gown, and move directly into the restricted corridor of the surgical suite,\xe2\x80\x9d and the latter\n\xe2\x80\x9cshall be arranged to provide a one-way traffic pattern from the restricted surgical corridor to the\npostoperative recovery suite, and then to the extended observation rooms or discharge.\xe2\x80\x9d Surgical\ncenters must meet numerous other spatial requirements, including specific corridor widths. Surgical\ncenters must also have an advanced heating, ventilation, and air conditioning system, and must\nsatisfy particular piping system and plumbing requirements. Dozens of other sections list additional\nrequirements that apply to surgical centers.\nThere is considerable evidence in the record supporting the District Court\xe2\x80\x99s findings indicating that\nthe statutory provision requiring all abortion facilities to meet all surgical-center standards does not\nbenefit patients and is not necessary. The District Court found that \xe2\x80\x9crisks are not appreciably lowered\nfor patients who undergo abortions at ambulatory surgical centers as compared to nonsurgicalCHAPTER TEN: Unenumerated Rights and Due Process | 575\n\n\x0ccenter facilities.\xe2\x80\x9d The court added that women \xe2\x80\x9cwill not obtain better care or experience more\nfrequent positive outcomes at an ambulatory surgical center as compared to a previously licensed\nfacility.\xe2\x80\x9d And these findings are well supported.\nThe record makes clear that the surgical-center requirement provides no benefit when complications\narise in the context of an abortion produced through medication. That is because, in such a case,\ncomplications would almost always arise only after the patient has left the facility. The record also\ncontains evidence indicating that abortions taking place in an abortion facility are safe\xe2\x80\x94indeed, safer\nthan numerous procedures that take place outside hospitals and to which Texas does not apply its\nsurgical-center requirements. The total number of deaths in Texas from abortions was five in the\nperiod from 2001 to 2012, or about one every two years (that is to say, one out of about 120,000 to\n144,000 abortions). Nationwide, childbirth is 14 times more likely than abortion to result in death,\nbut Texas law allows a midwife to oversee childbirth in the patient\xe2\x80\x99s own home. Colonoscopy, a\nprocedure that typically takes place outside a hospital (or surgical center) setting, has a mortality\nrate 10 times higher than an abortion. See ACOG Brief (the mortality rate for liposuction, another\noutpatient procedure, is 28 times higher than the mortality rate for abortion). Medical treatment\nafter an incomplete miscarriage often involves a procedure identical to that involved in a nonmedical\nabortion, but it often takes place outside a hospital or surgical center. And Texas partly or wholly\ngrandfathers (or waives in whole or in part the surgical-center requirement for) about two-thirds of\nthe facilities to which the surgical-center standards apply. But it neither grandfathers nor provides\nwaivers for any of the facilities that perform abortions. These facts indicate that the surgical-center\nprovision imposes \xe2\x80\x9ca requirement that simply is not based on differences\xe2\x80\x9d between abortion and\nother surgical procedures \xe2\x80\x9cthat are reasonably related to\xe2\x80\x9d preserving women\xe2\x80\x99s health, the asserted\n\xe2\x80\x9cpurpos[e] of the Act in which it is found.\xe2\x80\x9d\nMoreover, many surgical-center requirements are inappropriate as applied to surgical abortions.\nRequiring scrub facilities; maintaining a one-way traffic pattern through the facility; having ceiling,\nwall, and floor finishes; separating soiled utility and sterilization rooms; and regulating air pressure,\nfiltration, and humidity control can help reduce infection where doctors conduct procedures that\npenetrate the skin. But abortions typically involve either the administration of medicines or\nprocedures performed through the natural opening of the birth canal, which is itself not sterile. Nor\ndo provisions designed to safeguard heavily sedated patients (unable to help themselves) during fire\nemergencies, provide any help to abortion patients, as abortion facilities do not use general anesthesia\nor deep sedation. Further, since the few instances in which serious complications do arise following\nan abortion almost always require hospitalization, not treatment at a surgical center, surgical-center\nstandards will not help in those instances either.\nThe upshot is that this record evidence, along with the absence of any evidence to the contrary,\nprovides ample support for the District Court\xe2\x80\x99s conclusion that \xe2\x80\x9c[m]any of the building standards\nmandated by the act and its implementing rules have such a tangential relationship to patient safety in\nthe context of abortion as to be nearly arbitrary.\xe2\x80\x9d That conclusion, along with the supporting evidence,\nprovides sufficient support for the more general conclusion that the surgical-center requirement \xe2\x80\x9cwill\nnot [provide] better care or \xe2\x80\xa6 more frequent positive outcomes.\xe2\x80\x9d The record evidence thus supports\nthe ultimate legal conclusion that the surgical-center requirement is not necessary.\n576 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cAt the same time, the record provides adequate evidentiary support for the District Court\xe2\x80\x99s conclusion\nthat the surgical-center requirement places a substantial obstacle in the path of women seeking an\nabortion. The parties stipulated that the requirement would further reduce the number of abortion\nfacilities available to seven or eight facilities, located in Houston, Austin, San Antonio, and Dallas/Fort\nWorth. In the District Court\xe2\x80\x99s view, the proposition that these \xe2\x80\x9cseven or eight providers could meet\nthe demand of the entire State stretches credulity.\xe2\x80\x9d We take this statement as a finding that these few\nfacilities could not \xe2\x80\x9cmeet\xe2\x80\x9d that \xe2\x80\x9cdemand.\xe2\x80\x9d\nThe Court of Appeals held that this finding was \xe2\x80\x9cclearly erroneous.\xe2\x80\x9d It wrote that the finding rested\nupon the \xe2\x80\x9c\xe2\x80\x98ipse dixit\xe2\x80\x99\xe2\x80\x9d of one expert, Dr. Grossman, and that there was no evidence that the current\nsurgical centers (i.e., the seven or eight) are operating at full capacity or could not increase capacity.\nUnlike the Court of Appeals, however, we hold that the record provides adequate support for the\nDistrict Court\xe2\x80\x99s finding.\nFor one thing, the record contains charts and oral testimony by Dr. Grossman, who said that, as\na result of the surgical-center requirement, the number of abortions that the clinics would have\nto provide would rise from \xe2\x80\x9c \xe2\x80\x9814,000 abortions annually\xe2\x80\x99 \xe2\x80\x9d to \xe2\x80\x9c \xe2\x80\x9860,000 to 70,000\xe2\x80\x99 \xe2\x80\x9d\xe2\x80\x94an increase by\na factor of about five. The District Court credited Dr. Grossman as an expert witness. The Federal\nRules of Evidence state that an expert may testify in the \xe2\x80\x9cform of an opinion\xe2\x80\x9d as long as that opinion\nrests upon \xe2\x80\x9csufficient facts or data\xe2\x80\x9d and \xe2\x80\x9creliable principles and methods.\xe2\x80\x9d Rule 702. In this case Dr.\nGrossman\xe2\x80\x99s opinion rested upon his participation, along with other university researchers, in research\nthat tracked \xe2\x80\x9cthe number of open facilities providing abortion care in the state by \xe2\x80\xa6 requesting\ninformation from the Texas Department of State Health Services \xe2\x80\xa6 [, t]hrough interviews with clinic\nstaff[,] and review of publicly available information.\xe2\x80\x9d The District Court acted within its legal authority\nin determining that Dr. Grossman\xe2\x80\x99s testimony was admissible. * * * *\nFor another thing, common sense suggests that, more often than not, a physical facility that satisfies\na certain physical demand will not be able to meet five times that demand without expanding or\notherwise incurring significant costs. Suppose that we know only that a certain grocery store serves\n200 customers per week, that a certain apartment building provides apartments for 200 families,\nthat a certain train station welcomes 200 trains per day. While it is conceivable that the store, the\napartment building, or the train station could just as easily provide for 1,000 customers, families, or\ntrains at no significant additional cost, crowding, or delay, most of us would find this possibility highly\nimprobable. The dissent takes issue with this general, intuitive point by arguing that many places\noperate below capacity and that in any event, facilities could simply hire additional providers. We\ndisagree that, according to common sense, medical facilities, well known for their wait times, operate\nbelow capacity as a general matter. And the fact that so many facilities were forced to close by the\nadmitting-privileges requirement means that hiring more physicians would not be quite as simple as\nthe dissent suggests. Courts are free to base their findings on commonsense inferences drawn from\nthe evidence. And that is what the District Court did here.\nThe dissent now seeks to discredit Dr. Grossman by pointing out that a preliminary prediction\nhe made in his testimony in Abbott about the effect of the admitting-privileges requirement on\ncapacity was not borne out after that provision went into effect. If every expert who overestimated\nor underestimated any figure could not be credited, courts would struggle to find expert assistance.\nCHAPTER TEN: Unenumerated Rights and Due Process | 577\n\n\x0cMoreover, making a hypothesis\xe2\x80\x94and then attempting to verify that hypothesis with further studies, as\nDr. Grossman did\xe2\x80\x94is not irresponsible. It is an essential element of the scientific method. The District\nCourt\xe2\x80\x99s decision to credit Dr. Grossman\xe2\x80\x99s testimony was sound, particularly given that Texas provided\nno credible experts to rebut it ({the District Court declined} to credit Texas\xe2\x80\x99 expert witnesses, in part\nbecause Vincent Rue, a nonphysician consultant for Texas, had exercised \xe2\x80\x9cconsiderable editorial and\ndiscretionary control over the contents of the experts\xe2\x80\x99 reports\xe2\x80\x9d).\nTexas suggests that the seven or eight remaining clinics could expand sufficiently to provide abortions\nfor the 60,000 to 72,000 Texas women who sought them each year. Because petitioners had satisfied\ntheir burden, the obligation was on Texas, if it could, to present evidence rebutting that issue to the\nDistrict Court. Texas admitted that it presented no such evidence. Tr. of Oral Arg. 46. Instead, Texas\nargued before this Court that one new clinic now serves 9,000 women annually. In addition to being\noutside the record, that example is not representative. The clinic to which Texas referred apparently\ncost $26 million to construct\xe2\x80\x94a fact that even more clearly demonstrates that requiring seven or eight\nclinics to serve five times their usual number of patients does indeed represent an undue burden on\nabortion access. See Planned Parenthood Debuts New Building: Its $26 Million Center in Houston is\nLargest of Its Kind in U.S., Houston Chronicle, May 21, 2010, p. B1.\nAttempting to provide the evidence that Texas did not, the dissent points to an exhibit submitted\nin Abbott showing that three Texas surgical centers, two in Dallas as well as the $26\xe2\x80\x93million facility\nin Houston, are each capable of serving an average of 7,000 patients per year. That \xe2\x80\x9caverage\xe2\x80\x9d is\nmisleading. In addition to including the Houston clinic, which does not represent most facilities, it is\nunderinclusive. It ignores the evidence as to the Whole Woman\xe2\x80\x99s Health surgical-center facility in San\nAntonio, the capacity of which is described as \xe2\x80\x9cseverely limited.\xe2\x80\x9d The exhibit does nothing to rebut\nthe commonsense inference that the dramatic decline in the number of available facilities will cause\na shortfall in capacity should H.B. 2 go into effect. And facilities that were still operating after the\neffective date of the admitting-privileges provision were not able to accommodate increased demand.\nSee App. 238; Tr. of Oral Arg. 30\xe2\x80\x9331; Brief for National Abortion Federation et al. as Amici Curiae 17\xe2\x80\x9320\n(citing clinics\xe2\x80\x99 experiences since the admitting-privileges requirement went into effect of 3\xe2\x80\x93week wait\ntimes, staff burnout, and waiting rooms so full, patients had to sit on the floor or wait outside).\nMore fundamentally, in the face of no threat to women\xe2\x80\x99s health, Texas seeks to force women to\ntravel long distances to get abortions in crammed-to-capacity superfacilities. Patients seeking these\nservices are less likely to get the kind of individualized attention, serious conversation, and emotional\nsupport that doctors at less taxed facilities may have offered. Healthcare facilities and medical\nprofessionals are not fungible commodities. Surgical centers attempting to accommodate sudden,\nvastly increased demand, may find that quality of care declines. Another commonsense inference that\nthe District Court made is that these effects would be harmful to, not supportive of, women\xe2\x80\x99s health.\nFinally, the District Court found that the costs that a currently licensed abortion facility would have\nto incur to meet the surgical-center requirements were considerable, ranging from $1 million per\nfacility (for facilities with adequate space) to $3 million per facility (where additional land must be\npurchased). This evidence supports the conclusion that more surgical centers will not soon fill the gap\nwhen licensed facilities are forced to close.\n\n578 | Liberty, Equality, and Due Process: Third Edition\n\n\x0cWe agree with the District Court that the surgical-center requirement, like the admitting-privileges\nrequirement, provides few, if any, health benefits for women, poses a substantial obstacle to women\nseeking abortions, and constitutes an \xe2\x80\x9cundue burden\xe2\x80\x9d on their constitutional right to do so.\n\nVI\nWe consider three additional arguments that Texas makes and deem none persuasive.\nFirst, Texas argues that facial invalidation of both challenged provisions is precluded by H.B. 2\xe2\x80\x99s\nseverability clause. * * * * {But} The statute was meant to require abortion facilities to meet the\nintegrated surgical-center standards\xe2\x80\x94not some subset thereof. The severability clause refers to\nsevering applications of words and phrases in the Act, such as the surgical-center requirement as a\nwhole. * * * *\nSecond, Texas claims that the provisions at issue here do not impose a substantial obstacle because\nthe women affected by those laws are not a \xe2\x80\x9clarge fraction\xe2\x80\x9d of Texan women \xe2\x80\x9cof reproductive age,\xe2\x80\x9d\nwhich Texas reads Casey to have required. But Casey used the language \xe2\x80\x9clarge fraction\xe2\x80\x9d to refer to \xe2\x80\x9ca\nlarge fraction of cases in which [the provision at issue] is relevant,\xe2\x80\x9d a class narrower than \xe2\x80\x9call women,\xe2\x80\x9d\n\xe2\x80\x9cpregnant women,\xe2\x80\x9d or even \xe2\x80\x9cthe class of women seeking abortions identified by the State.\xe2\x80\x9d (opinion of\nthe Court) (emphasis added). Here, as in Casey, the relevant denominator is \xe2\x80\x9cthose [women] for whom\n[the provision] is an actual rather than an irrelevant restriction.\xe2\x80\x9d\nThird, Texas looks for support to Simopoulos v. Virginia (1983), a case in which this Court upheld\na surgical-center requirement as applied to second-trimester abortions. This case, however, unlike\nSimopoulos, involves restrictions applicable to all abortions, not simply to those that take place during\nthe second trimester. * * * *\nFor these reasons the judgment of the Court of Appeals is reversed, and the case is remanded for\nfurther proceedings consistent with this opinion.\nIt is so ordered.\nJUSTICE GINSBURG, CONCURRING\n* * * * When a State severely limits access to safe and legal procedures, women in desperate\ncircumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their\nhealth and safety. See Brief for Ten Pennsylvania Abortion Care Providers as Amici Curiae. So long as\nthis Court adheres to Roe v. Wade (1973), and Planned Parenthood of Southeastern Pa. v. Casey (1992),\nTargeted Regulation of Abortion Providers laws like H. B. 2 that \xe2\x80\x9cdo little or nothing for health, but\nrather strew impediments to abortion,\xe2\x80\x9d cannot survive judicial inspection.\n\nCHAPTER TEN: Unenumerated Rights and Due Process | 579\n\n\x0cJUSTICE THOMAS, DISSENTING {OMITTED}.\nJUSTICE ALITO, WITH WHOM THE CHIEF JUSTICE AND JUSTICE THOMAS JOIN, DISSENTING.\nThe constitutionality of laws regulating abortion is one of the most controversial issues in American\nlaw, but this case does not require us to delve into that contentious dispute. Instead, the dispositive\nissue here concerns a workaday question that can arise in any case no matter the subject, namely,\nwhether the present case is barred by res judicata. As a court of law, we have an obligation to apply\nsuch rules in a neutral fashion in all cases, regardless of the subject of the suit. If anything, when a case\ninvolves a controversial issue, we should be especially careful to be scrupulously neutral in applying\nsuch rules.\nThe Court has not done so here * * * * and will undermine public confidence in the Court as a fair and\nneutral arbiter. * * * *\n\nI \xe2\x80\x93 II\n{discussions of claim preclusion omitted}\n\nIII\nEven if res judicata did not bar either facial claim, a sweeping, statewide injunction against the\nenforcement of the admitting privileges and ASC requirements would still be unjustified. Petitioners\nin this case are abortion clinics and physicians who perform abortions. If they were simply asserting\na constitutional right to conduct a business or to practice a profession without unnecessary state\nregulation, they would have little chance of success. See, e.g., Williamson v. Lee Optical of Okla., Inc.\n(1955). Under our abortion cases, however, they are permitted to rely on the right of the abortion\npatients they serve.\nThus, what matters for present purposes is not the effect of the H.B. 2 provisions on petitioners but\nthe effect on their patients. Under our cases, petitioners must show that the admitting privileges and\nASC requirements impose an \xe2\x80\x9cundue burden\xe2\x80\x9d on women seeking abortions. Gonzales v. Carhart (2007).\nAnd in order to obtain the sweeping relief they seek\xe2\x80\x94facial invalidation of those provisions\xe2\x80\x94they\nmust show, at a minimum, that these provisions have an unconstitutional impact on at least a \xe2\x80\x9clarge\nfraction\xe2\x80\x9d of Texas women of reproductive age. Such a situation could result if the clinics able to\ncomply with the new requirements either lacked the requisite overall capacity or were located too far\naway to serve a \xe2\x80\x9clarge fr
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