Constitution of the United States/Fourteenth Amend./Section 1 Rights
Fourteenth Amendment Equal Protection and Other Rights
Section 1 Rights
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| All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. |
Citizenship[edit | edit source]
Historical Background on Citizenship Clause[edit | edit source]
The citizenship provisions of the Fourteenth Amendment may be seen as a repudiation of one of the more politically divisive cases of the nineteenth century. Under common law, free persons born within a state or nation were citizens thereof. In the Dred Scott case,[1] however, Chief Justice Roger Taney, writing for the Court, ruled that this rule did not apply to freed slaves. The Court held that United States citizenship was enjoyed by only two classes of people: (1) White persons born in the United States as descendants of "persons, who were at the time of the adoption of the Constitution recognised as citizens in the several States, [and who] became also citizens of this new political body," the United States of America, and (2) those who, having been "born outside the dominions of the United States," had migrated thereto and been naturalized therein.[2] Freed slaves fell into neither of these categories.
The Court further held that, although a state could confer state citizenship upon whomever it chose, it could not make the recipient of such status a citizen of the United States. Even a free man descended from a former slave residing as a free man in one of the states at the date of ratification of the Constitution was held ineligible for citizenship.[3] Congress subsequently repudiated this concept of citizenship, first in section 1[4] of the Civil Rights Act of 1866[5] and then in Section 1 of the Fourteenth Amendment. In doing so, Congress set aside the Dred Scott holding, and restored the traditional precepts of citizenship by birth.[6]
Citizenship Clause Doctrine[edit | edit source]
Based on the first sentence of Section 1, the Court has held that a child born in the United States of Chinese parents who were ineligible to be naturalized themselves is nevertheless a citizen of the United States entitled to all the rights and privileges of citizenship.[7] The requirement that a person be "subject to the jurisdiction thereof," however, excludes its application to children born of diplomatic representatives of a foreign state, children born of alien enemies in hostile occupation,[8] or children of members of Indian tribes subject to tribal laws.[9] In addition, the citizenship of children born on vessels in United States territorial waters or on the high seas has generally been held by the lower courts to be determined by the citizenship of the parents.[10] Citizens of the United States within the meaning of this Amendment must be natural and not artificial persons; a corporate body is not a citizen of the United States.[11]
Loss of Citizenship[edit | edit source]
In Afroyim v. Rusk,[12] a divided Court extended the force of this first sentence beyond prior holdings, ruling that it withdrew from the Government of the United States the power to expatriate United States citizens against their will for any reason. "[T]he Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other government unit."[13] In a subsequent decision, however, the Court held that persons who were statutorily naturalized by being born abroad of at least one American parent could not claim the protection of the first sentence of Section 1 and that Congress could therefore impose a reasonable and non-arbitrary condition subsequent upon their continued retention of United States citizenship.[14] Between these two decisions is a tension that should call forth further litigation efforts to explore the meaning of the citizenship sentence of the Fourteenth Amendment.
Privileges or Immunities[edit | edit source]
Privileges or Immunities of Citizens and the Slaughter-House Cases[edit | edit source]
Unique among constitutional provisions, the clause prohibiting state abridgement of the "privileges or immunities" of United States citizens was rendered a "practical nullity" by a single decision of the Supreme Court issued within five years of its ratification. In the Slaughter-House Cases,[15] the Court evaluated a Louisiana statute that conferred a monopoly upon a single corporation to engage in the business of slaughtering cattle. In determining whether this statute abridged the "privileges" of other butchers, the Court frustrated the aims of the most aggressive sponsors of the privileges or immunities Clause. According to the Court, these sponsors had sought to centralize "in the hands of the Federal Government large powers hitherto exercised by the States" by converting the rights of the citizens of each state at the time of the adoption of the Fourteenth Amendment into protected privileges and immunities of United States citizenship. This interpretation would have allowed business to develop unimpeded by state interference by limiting state laws "abridging" these privileges.
According to the Court, however, such an interpretation would have "transfer[red] the security and protection of all the civil rights . . . to the Federal Government, . . . to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States," and would "constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. . . . [The effect of] so great a departure from the structure and spirit of our institutions . . . is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character . . . . We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them," and that the "one pervading purpose" of this and the other War Amendments was "the freedom of the slave race."
Based on these conclusions, the Court held that none of the rights alleged by the competing New Orleans butchers to have been violated were derived from the butchers' national citizenship; insofar as the Louisiana law interfered with their pursuit of the business of butchering animals, the privilege was one that "belong to the citizens of the States as such." Despite the broad language of this Clause, the Court held that the privileges and immunities of state citizenship had been "left to the State governments for security and protection" and had not been placed by the clause "under the special care of the Federal government." The only privileges that the Fourteenth Amendment protected against state encroachment were declared to be those "which owe their existence to the Federal Government, its National character, its Constitution, or its laws."[16] These privileges, however, had been available to United States citizens and protected from state interference by operation of federal supremacy even prior to the adoption of the Fourteenth Amendment. The Slaughter-House Cases, therefore, reduced the Privileges or Immunities Clause to a superfluous reiteration of a prohibition already operative against the states.
Modern Doctrine on Privileges or Immunities Clause[edit | edit source]
Although the Court in the Slaughter-House Cases expressed a reluctance to enumerate those privileges and immunities of United States citizens that are protected against state encroachment, it nevertheless felt obliged to suggest some. Among those that it identified were the right of access to the seat of government and to the seaports, subtreasuries, land officers, and courts of justice in the several states, the right to demand protection of the Federal Government on the high seas or abroad, the right of assembly, the privilege of habeas corpus, the right to use the navigable waters of the United States, and rights secured by treaty.[17] In Twining v. New Jersey,[18] the Court recognized "among the rights and privileges" of national citizenship the right to pass freely from state to state,[19] the right to petition Congress for a redress of grievances,[20] the right to vote for national officers,[21] the right to enter public lands,[22] the right to be protected against violence while in the lawful custody of a United States marshal,[23] and the right to inform the United States authorities of violation of its laws.[24] Earlier, in a decision not mentioned in Twining, the Court had also acknowledged that the carrying on of interstate commerce is "a right which every citizen of the United States is entitled to exercise."[25]
In modern times, the Court has continued the minor role accorded to the Clause, only occasionally manifesting a disposition to enlarge the restraint that it imposes upon state action.[26] In Hague v. CIO,[27] two and perhaps three justices thought that the freedom to use municipal streets and parks for the dissemination of information concerning provisions of a federal statute and to assemble peacefully therein for discussion of the advantages and opportunities offered by such act was a privilege and immunity of a United States citizen, and, in Edwards v. California,[28] four Justices were prepared to rely on the Clause.[29] In many other respects, however, claims based on this Clause have been rejected.[30]
In Oyama v. California,[31] the Court, in a single sentence, agreed with the contention of a native-born youth that a state Alien Land Law that resulted in the forfeiture of property purchased in his name with funds advanced by his parent, a Japanese alien ineligible for citizenship and precluded from owning land, deprived him "of his privileges as an American citizen." The right to acquire and retain property had previously not been set forth in any of the enumerations as one of the privileges protected against state abridgment, although a federal statute enacted prior to the proposal and ratification of the Fourteenth Amendment did confer on all citizens the same rights to purchase and hold real property as White citizens enjoyed.[32]
In a doctrinal shift of uncertain significance, the Court will apparently evaluate challenges to durational residency requirements, previously considered as violations of the right to travel derived from the Equal Protection Clause,[33] as a potential violation of the Privileges or Immunities Clause. Thus, where a California law restricted the level of welfare benefits available to Californians who have been residents for less than a year to the level of benefits available in the state of their prior residence, the Court found a violation of the right of newly arrived citizens to be treated the same as other state citizens.[34] Despite suggestions that this opinion will open the door to "guaranteed equal access to all public benefits,"[35] it seems more likely that the Court is protecting the privilege of being treated immediately as a full citizen of the state one chooses for permanent residence.[36]
Due Process Generally[edit | edit source]
The Fourteenth Amendment's Due Process Clause provides that no state may "deprive any person of life, liberty, or property, without due process of law."[37] The Supreme Court has applied the Clause in two main contexts. First, the Court has construed the Clause to provide protections that are similar to those of the Fifth Amendment's Due Process Clause except that, while the Fifth Amendment applies to federal government actions, the Fourteenth Amendment binds the states.[38] The Fourteenth Amendment's Due Process Clause guarantees "procedural due process," meaning that government actors must follow certain procedures before they may deprive a person of a protected life, liberty, or property interest.[39] The Court has also construed the Clause to protect "substantive due process," holding that there are certain fundamental rights that the government may not infringe even if it provides procedural protections.[40]
Second, the Court has construed the Fourteenth Amendment's Due Process Clause to render many provisions of the Bill of Rights applicable to the states.[41] As originally ratified, the Bill of Rights restricted the actions of the federal government but did not limit the actions of state governments. However, following ratification of the Reconstruction Amendment, the Court has interpreted the Fourteenth Amendment's Due Process Clause to impose on the states many of the Bill of Rights' limitations, a doctrine sometimes called "incorporation" against the states through the Due Process Clause. Litigants bringing constitutional challenges to state government action often invoke the doctrines of procedural or substantive due process or argue that state action violates the Bill of Rights, as incorporated against the states. The Due Process Clause of the Fourteenth Amendment has thus formed the basis for many high-profile Supreme Court cases.[42]
The Fourteenth Amendment prohibits states from depriving "any person" of life, liberty, or property without due process of law. The Supreme Court has held that this protection extends to all natural persons (i.e., human beings), regardless of race, color, or citizenship.[43] The Court has also considered multiple cases about whether the word "person" includes "artificial persons," meaning entities such as corporations. As early as the 1870s, the Court appeared to accept that the Clause protects corporations, at least in some circumstances. In the 1877 Granger Cases, the Court upheld various state laws without questioning whether a corporation could raise due process claims.[44] In a roughly contemporaneous case arising under the Fifth Amendment, the Court explicitly declared that the United States "equally with the States . . . are prohibited from depriving persons or corporations of property without due process of law."[45] Subsequent decisions of the Court have held that a corporation may not be deprived of its property without due process of law.[46] By contrast, in multiple cases involving the liberty interest, the Court has held that the Fourteenth Amendment protects the liberty of natural, not artificial, persons.[47] Nevertheless, the Court has at times allowed corporations to raise claims not based on the property interest. For instance, in a 1936 case, a newspaper corporation successfully argued that a state law deprived it of liberty of the press.[48]
A separate question concerns the ability of government officials to invoke the Due Process Clause to protect the interests of their office. Ordinarily, the mere official interest of a public officer, such as the interest in enforcing a law, does not enable him to challenge the constitutionality of a law under the Fourteenth Amendment.[49] Moreover, municipal corporations lack standing "to invoke the provisions of the Fourteenth Amendment in opposition to the will of their creator," the state.[50] However, the Court has acknowledged that state officers have an interest in resisting "an endeavor to prevent the enforcement of statutes in relation to which they have official duties," even if the officials have not sustained any "private damage."[51] State officials may therefore ask federal courts "to review decisions of state courts declaring state statutes, which [they] seek to enforce, to be repugnant to" the Fourteenth Amendment.[52]
Incorporation of Bill of Rights[edit | edit source]
Overview of Incorporation of the Bill of Rights[edit | edit source]
The Bill of Rights, comprising the first ten amendments to the Constitution, protects certain rights belonging to individuals and states against infringement by the federal government. While some provisions of the Constitution expressly prohibit the states from taking certain actions,[53] the Bill of Rights does not explicitly bind the states,[54] and the Supreme Court in early cases declined to apply the Bill of Rights to the states directly.[55] However, following the ratification of the Fourteenth Amendment, the Supreme Court has interpreted the Fourteenth Amendment's Due Process Clause to impose on the states many of the Bill of Rights' limitations, a doctrine sometimes called "incorporation" against the states through the Due Process Clause.
In the early years of the Republic, both Congress and the Supreme Court appear to have believed that the Bill of Rights restricted only the federal government, not the states. When Congress was considering the constitutional amendments that later became the Bill of Rights, the Senate rejected an amendment that would have applied to the states, which read: "The equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases shall not be infringed by any State."[56] Beginning with Chief Justice John Marshall's opinion in the 1833 case Barron v. Baltimore, a number of nineteenth century Supreme Court decisions rejected arguments that the first eight amendments to the Constitution should limit the states' ability to restrict protected rights.[57]
Following the ratification of the Fourteenth Amendment in 1868, the Court changed course and held that the Due Process Clause of the Fourteenth Amendment prohibits the states from depriving their citizens of certain privileges and protections contained in the Bill of Rights.[58] Subsequent decisions of the Court have held that many provisions of the Bill of Rights bind the states; however, there are some Bill of Rights provisions that the Court has not applied to the states.[59]
Early Doctrine on Incorporation of the Bill of Rights[edit | edit source]
Following the ratification of the Fourteenth Amendment, litigants challenging state laws and policies pursued several different strategies to raise constitutional challenges under the Fourteenth Amendment. In early litigation, plaintiffs unsuccessfully invoked the Fourteenth Amendment's Privileges or Immunities Clause to challenge state regulations.[60] Litigants in other cases argued that the Due Process Clause of the Fourteenth Amendment guarantees certain fundamental and essential rights, but did not specifically argue that the Amendment incorporated the Bill of Rights to restrict state government action.[61]
Beginning in the 1880s, some litigants contended that, although the Bill of Rights as originally ratified did not limit the states, to the extent the Bill of Rights secured and recognized fundamental rights, those rights were rights, privileges, or immunities of citizens of the United States and were now protected against state abridgment by the Fourteenth Amendment. In the 1887 decision Spies v. Illinois, the Court resolved one such case on other grounds.[62] In a series of subsequent cases, the Court confronted the argument and rejected it.[63] The elder Justice John Marshall Harlan and other Justices dissented in some of these cases, arguing that the Fourteenth Amendment in effect incorporated the Bill of Rights such that its guarantees also restrain the states.[64]
In 1947, in Adamson v. California, a minority of four Justices would have held that the Fourteenth Amendment "was intended to, and did make the [Fifth Amendment] prohibition against compelled testimony applicable to trials in state courts."[65] Justice Hugo Black, joined by three others, stated that his research into the history of the Fourteenth Amendment left him in no doubt "that the language of the first section of the Fourteenth Amendment, taken as a whole, was thought by those responsible for its submission to the people, and by those who opposed its submission, sufficiently explicit to guarantee that thereafter no state could deprive its citizens of the privileges and protections of the Bill of Rights."[66] Justice Black's analysis prompted scholarly debate over whether those who drafted and ratified the Fourteenth Amendment intended for the Amendment to apply the Bill of Rights to the states.[67] Against that background, beginning at the end of the nineteenth century, the Court issued a series of decisions that imposed restrictions on state governments that were either similar to or directly derived from restrictions the Bill of Rights imposes on the federal government.
Early due process cases did not hold that the Fourteenth Amendment incorporated the Bill of Rights against the states directly but instead held that the Bill of Rights and the Fourteenth Amendment's Due Process Clause each separately enshrined certain fundamental rights. Thus, in an 1897 case, the Court held that the Fourteenth Amendment's Due Process Clause forbade the taking of private property without just compensation but did not mention the Just Compensation Clause of the Fifth Amendment.[68] In 1908, in Twining v. New Jersey, the Court observed,
[I]t is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. . . . If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such nature that they are included in the conception of due process of law. 211 U.S. 78, 99 (1908). See also Powell v. Alabama, 287 U.S. 45, 67-68 (1932) (quoting Twining and stating that "a consideration of the nature of the right and a review of the expressions of this and other courts, makes it clear that the right to the aid of counsel is of this fundamental character").
In the 1925 case Gitlow v. New York, the Court said in dictum: "For present purposes we may and do assume that freedom of speech and of the press--which are protected by the First Amendment from abridgment by Congress--are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States."[69] In two opinions from the 1930s, Justice Benjamin Cardozo summarized the doctrine of this period by observing that the Fourteenth Amendment's Due Process Clause might proscribe a certain state action, not because the proscription was spelled out in one of the first eight amendments, but because certain proscriptions were "implicit in the concept of ordered 'liberty,'"[70] such that state government action that violates them "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."[71] As late as 1958, Justice Harlan opined that a state practice violated the Fourteenth Amendment because "[i]t is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech."[72]
In contrast to the foregoing approach of holding that the Bill of Rights and the Due Process Clause separately protect some of the same rights, the doctrine of incorporation holds that the Due Process Clause renders provisions of the Bill of Rights directly applicable to the states. The practice of looking to the Bill of Rights to identify rights protected by the Fourteenth Amendment emerged in Supreme Court cases in the first half of the twentieth century.[73] Some Justices advocated for a doctrine of total incorporation, which would have held that the Fourteenth Amendment's Due Process Clause applied the Bill of Rights to the states in its entirety.[74] Others preferred the doctrine of selective incorporation, which would apply certain fundamental provisions of the Bill of Rights to the states on a case-by-case basis.[75] A majority of the Court never embraced total incorporation. Over time, the doctrine of selective incorporation gained prominence, coming to dominate Fourteenth Amendment due process jurisprudence by the 1960s. Thus, in the 1964 case Malloy v. Hogan, Justice William Brennan wrote:
We have held that the guarantees of the First Amendment, the prohibition of unreasonable searches and seizures of the Fourth Amendment, and the right to counsel guaranteed by the Sixth Amendment, are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment. 378 U.S. 1, 10 (1964) (citations omitted).
Similarly, in a 1963 case, Justice Thomas Clark wrote that "this Court has decisively settled that the First Amendment's mandate that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof' has been made wholly applicable to the States by the Fourteenth Amendment."[76]
Modern Doctrine on Selective Incorporation of Bill of Rights[edit | edit source]
Modern Supreme Court doctrine embraces the doctrine of selective incorporation of the Bill of Rights against the states, meaning that the Court has held on a case-by-case basis that many of the provisions of the Bill of Rights limit state government action. Numerous Supreme Court decisions hold that particular provisions of the Bill of Rights have been applied to the states through the Fourteenth Amendment's Due Process Clause.[77] Primarily through the doctrine of selective incorporation, the Court has held that most provisions of the Bill of Rights apply to the states.[78]
The Court has applied to the states the First Amendment's[79] guarantee of free exercise of religion,[80] the prohibition on government establishment of religion,[81] the rights of freedom of speech,[82] freedom of the press,[83] and freedom of assembly,[84] and the right to petition the government.[85] The Court has also incorporated against the states the Second Amendment right to keep and bear arms[86] and the Fourth Amendment right to be free from unreasonable searches and seizures.[87] Numerous Supreme Court cases have applied provisions of the Fifth[88] and Sixth Amendments[89] to restrict state government action. In addition, the Court has applied to the states the Eighth Amendment's[90] restrictions on excessive bail,[91] excessive fines,[92] and cruel and unusual punishments.[93]
By contrast, the Court has declined to apply to the states the Fifth Amendment's right to a grand jury indictment[94] and the Seventh Amendment's guarantee of a jury trial in civil cases in which the amount in controversy exceeds twenty dollars.[95] The Court has had no occasion to decide whether the states must comply with the Third Amendment's limitations on quartering troops in homes.[96] The Ninth and Tenth Amendments do not expressly enumerate separate substantive rights for protection,[97] though the Court has cited the Ninth Amendment in litigation against a state.[98]
In deciding whether the Fourteenth Amendment incorporated a specific right against the states, the Court asks whether the right at issue is "both 'fundamental to our scheme of ordered liberty' and 'deeply rooted in this Nation's history and tradition.'"[99] A majority of the Court has consistently held that, if a provision of the Bill of Rights is incorporated against the states, the provision imposes the same substantive limitations on the states and the federal government.[100] The Court has thus "rejected the notion that the Fourteenth Amendment applies to the State only a 'watered-down, subjective version of the individual guarantees of the Bill of Rights.'"[101]
Procedural Due Process[edit | edit source]
Overview of Procedural Due Process[edit | edit source]
The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law."[102] The Supreme Court has construed the Fourteenth Amendment's Due Process Clause to impose the same procedural due process limitations on the states as the Fifth Amendment does on the Federal Government.[103] Broadly speaking, procedural due process requires state actors to provide certain procedural protections before they deprive a person of any protected life, liberty, or property interest.[104] Unless one of those protected interests is at stake, the Due Process Clause does not apply.[105]
When considering whether a protected interest is at stake, the Supreme Court traditionally looked to the common understanding of the terms "life," "liberty," and "property," as embodied in the common law. The Court has always accepted that the liberty interest includes the interest in freedom from physical restraint[106] and the property interest attaches to the ownership of personal and real property.[107] In the 1960s and 1970s, the Court adopted more expansive views of the liberty and property interests, holding that the Due Process Clause protects some non-traditional interests such as conditional property rights and liberty and property rights created by statute.[108] In modern cases involving alleged property interests, the Court has often decided whether a property interest exists by considering whether a law or government policy created an "entitlement"--a reasonable expectation that a government-provided benefit would continue.[109] Modern cases have found protected liberty interests in the exercise of constitutional rights[110] and where state laws create an expectation related to individual liberty.[111] The scope of the life interest has not been the subject of significant litigation.[112]
When a protected interest is at stake, due process generally requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to the arbitrary exercise of government power.[113] However, the specific procedures needed to satisfy due process vary depending on the circumstances.[114] One key consideration in determining what procedures are required is whether the government conduct at issue is a part of a criminal or civil proceeding.[115] The Court has held that the "appropriate framework" for due process analysis of criminal procedures is a narrow inquiry into whether a procedure is offensive to the concept of fundamental fairness.[116] In the civil context, by contrast, the Court applies a balancing test that evaluates the government's chosen procedure in light of the private interest affected, the risk of erroneous deprivation of that interest under the chosen procedure, and the government interest at stake.[117]
Historical practice is often relevant in due process cases, as the Court analyzes the requirements of due process in part by examining the settled usages and modes of proceedings of the common and statutory law of England during pre-colonial times and in the early years of the Republic.[118] This means that the Court may be more likely to uphold legal procedures with a long historical pedigree. However, it does not necessarily follow that a procedure that was accepted in British law and adopted in this country is, or remains, an essential element of due process of law. If that were so, the Court has cautioned, the procedures of the first half of the seventeenth century would be "fastened upon American jurisprudence like a strait jacket, only to be unloosed by constitutional amendment."[119] Thus, the Constitution does not obligate the states to use any particular practice and procedure that existed at common law. Rather, as long as the states comply with due process requirements, they may learn from and build on the country's past experiences to make changes they deem to be necessary.[120]
The government often provides due process in the form of civil or criminal judicial proceedings but, in some contexts, the government may deprive a person of a protected interest without instituting judicial proceedings.[121] For instance, administrative and executive proceedings are not judicial in nature, yet they may satisfy the requirements of the Due Process Clause.[122] The Due Process Clause does not require de novo judicial review of agency proceedings, and in some circumstances may not require judicial review of agency decisions at all.[123]
While the Constitution requires separation between the three Branches of the Federal Government, states enjoy greater flexibility, and it is up to a state to determine to what extent its legislative, executive, and judicial powers should be kept distinct and separate.[124] Thus, the Due Process Clause does not prohibit a state from conferring judicial functions upon non-judicial bodies, or from delegating powers to a court that are legislative in nature.[125]
Liberty Deprivations and Due Process[edit | edit source]
The traditional conception of "liberty" refers to freedom from physical restraint or confinement. Freedom from confinement is one aspect of the liberty interest that the Due Process Clause protects, but the Supreme Court has also construed the liberty interest to include other common law and statutory rights.[126]
A number of cases involving claimed liberty interests relate to prisoners' rights. In those cases, the Court has often, but not always, been reluctant to find that a protected liberty interest exists unless the claim is based on a statutory right. For example, in Meachum v. Fano, the Court held that a state prisoner was not entitled to a fact-finding hearing when he was transferred to a different prison in which the conditions were substantially less favorable to him, because his initial valid conviction satisfied the due process requirement for depriving him of liberty and no state law guaranteed him the right to remain in the prison to which he was initially assigned.[127] As a prisoner could be transferred for any reason or for no reason under state law, the decision of prison officials was not dependent upon any set of facts, and no hearing was required. By contrast, in Vitek v. Jones, a state statute permitted transfer of a prisoner to a state mental hospital for treatment, but the transfer could be effectuated only upon a designated physician or psychologist finding that the prisoner "suffers from a mental disease or defect" and "cannot be given treatment in [the transferor] facility."[128] Because the transfer was conditioned upon a "cause," the Court held that fair procedures must be used to establish the facts necessary to show cause. The Vitek Court also held that the prisoner had a "residuum of liberty" in being free from the different confinement and from the stigma of involuntary commitment for mental disease, which the Due Process Clause protected.[129] Similarly, in cases involving revocation of parole or probation, the Court has recognized a liberty interest that is separate from a statutory entitlement and that can be taken away only through proper procedures.[130]
By contrast, in cases involving possible grants of parole, commutation of a sentence, or other proceedings that might expedite a prisoner's release, the Court has held that, in the absence of some form of positive entitlement, a prisoner may be turned down without observance of procedures.[131] Summarizing its prior holdings, the Court concluded in a 1989 case that two requirements must be present before a liberty interest is created in the prison context: a statute or regulation must contain "substantive predicates" limiting the exercise of official discretion, and there must be explicit "mandatory language" requiring a particular outcome if the substantive predicates are found.[132] In subsequent cases, the Court limited the application of this test to circumstances where a state's restraint on a prisoner's freedom creates an "atypical and significant hardship."[133]
Outside the criminal context, the Court has expanded the concept of "liberty" beyond freedom from physical restraint to include various other protected interests, some statutorily created and some not.[134] Thus, in Ingraham v. Wright, the Court unanimously agreed that school children had a liberty interest in freedom from wrongful or excessive corporal punishment, whether or not such interest was protected by statute.[135] The Court explained that the liberty interest protected by the Due Process Clause "included the right 'generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.' . . . Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security."[136]
In some cases, the Court also appeared to expand the notion of liberty to include the right to be free from official stigmatization, finding that the threat of such stigmatization could in and of itself require due process.[137] Thus, in the 1971 case Wisconsin v. Constantineau, the Court invalidated a statutory scheme in which persons could be labeled "excessive drinkers" without any opportunity for a hearing and rebuttal, and could then be barred from places where alcohol was served.[138] Without discussing the source of the entitlement, the Court noted that the governmental action at issue impugned the individual's "reputation, honor, or integrity."[139]
By contrast, in the 1976 case Paul v. Davis, the Court appeared to retreat from recognizing damage to reputation alone, holding instead that the liberty interest extended only to those situations where loss of one's reputation also resulted in the loss of a statutory entitlement.[140] In Davis, the police had included plaintiff's photograph and name on a list of "active shoplifters" circulated to merchants without an opportunity for notice or hearing. The Court rejected the constitutional challenge, holding that state law "does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioners' actions. Rather, his interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of [that] interest by means of damage actions."[141] Thus, it appears that unless the government's official defamation has a specific negative effect on an entitlement, such as the denial of the right to obtain alcohol that occurred in Constantineau, there is no protected liberty interest that would require due process.
Property Deprivations and Due Process[edit | edit source]
Like the liberty interest,[142] the concept of property rights has expanded beyond its common law roots, reflecting the Supreme Court's recognition that certain interests that fall short of traditional property rights are nonetheless important parts of people's economic well-being. For instance, in a case where household goods were sold under an installment contract and the seller retained title, the Court deemed the possessory interest of the buyer sufficiently important to require procedural due process before repossession could occur.[143] In another case, the Court held that the loss of the use of garnished wages between the time of garnishment and final resolution of the underlying suit was a sufficient property interest to require some form of determination that the garnisher was likely to prevail.[144] The Court has also ruled that the continued possession of a driver's license, which may be essential to one's livelihood, is a protected property interest.[145]
A more fundamental shift in the concept of property occurred with recognition of society's growing economic reliance on government benefits, employment, and contracts.[146] Another relevant factor was the decline of the distinction between rights and privileges. Justice Oliver Wendell Holmes summarized the distinction in dismissing a suit by a policeman who had been fired from his job for political activities: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."[147] Under that theory, a finding that a litigant had no "vested property interest" in government employment,[148] or that some form of public assistance was "only" a privilege rather than a right,[149] meant that no procedural due process was required before depriving a person of that interest.[150] The reasoning was that, if the government was under no obligation to provide some benefit, it could choose to provide that benefit subject to whatever conditions or procedures it deemed appropriate.
There was some tension between the position that the government was free to attach conditions to benefits and another line of cases holding that the government could not require the diminution of constitutional rights as a condition for receiving benefits. That line of thought, referred to as the "unconstitutional conditions" doctrine, held that, "even though a person has no 'right' to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, it may not do so on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech."[151] Nonetheless, the two doctrines coexisted in an unstable relationship until the 1960s, when Court largely abandoned the right-privilege distinction.[152] By 1972, the Court declared that it had "fully and finally rejected the wooden distinction between 'rights' and 'privileges' that once seemed to govern the applicability of procedural due process rights."[153]
Concurrently with the decline of the "right-privilege" distinction, the Court embraced a mode of analysis known as the "entitlement" doctrine, under which the Court erected procedural protections against erroneous deprivation of benefits the government had granted on a discretionary basis.[154] Previously, the Court had limited due process protections to constitutional rights, traditional rights, common law rights, and "natural rights." Under a new "positivist" approach, the Court might find a protected property or liberty interest based on any positive statute or governmental practice that gave rise to a legitimate expectation. This positivist doctrine can be seen in the 1970 case Goldberg v. Kelly, where the Court held that the government must provide an evidentiary hearing before terminating welfare benefits because such termination may deprive an eligible recipient of the means of livelihood.[155] In reaching that conclusion, the Court found that welfare benefits "are a matter of statutory entitlement for persons qualified to receive them."[156] Thus, where the loss or reduction of a benefit or privilege was conditioned upon specified grounds, the Court found that the recipient had a property interest entitling him to proper procedure before termination or revocation.
At first, the Court's emphasis on the importance of statutory rights to the claimant led some lower courts to apply the Due Process Clause by weighing the interests involved and the harm done to a person deprived of a benefit. However, the Court held that this approach was inappropriate. It explained, "[W]e must look not to the 'weight' but to the nature of the interest at stake. . . . We must look to see if the interest is within the Fourteenth Amendment's protection of liberty and property."[157] To have a property interest in the constitutional sense, the Court held, it was not enough for a person to have an abstract need or desire for a benefit or a unilateral expectation. He must rather "have a legitimate claim of entitlement" to the benefit.[158] The Court further explained that property interests "are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."[159]
Consequently, in Board of Regents v. Roth, the Court held that a public university's refusal to renew a teacher's contract upon expiration of his one-year term implicated no due process values because there was nothing in the university's contract, regulations, or policies that "created any legitimate claim" to reemployment.[160] By contrast, in Perry v. Sindermann, a professor employed for several years at a public college was found to have a protected interest, even though his employment contract had no tenure provision and there was no statutory assurance of it.[161] The Court deemed "existing rules or understandings" to have the characteristics of tenure, and thus to provide a legitimate expectation independent of any contract provision.[162]
The Court has also found "legitimate entitlements" in situations besides employment. In Goss v. Lopez, an Ohio statute provided for free education to all residents between five and twenty-one years of age and required school attendance; thus, the Court held that the state had obligated itself to provide students some due process hearing rights prior to suspending them.[163] The Court explained, "Having chosen to extend the right to an education to people of appellees' class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred."[164] The Court is highly deferential, however, to school dismissal decisions based on academic grounds.[165]
The more an interest differs from the traditional understanding of "property," the more difficult it is to establish a due process claim based on entitlements. In Town of Castle Rock v. Gonzales, the Court considered whether police officers violated a constitutionally protected property interest by failing to enforce a restraining order an estranged wife obtained against her husband, despite having probable cause to believe the order had been violated.[166] While noting statutory language that required that officers either use "every reasonable means to enforce [the] restraining order" or "seek a warrant for the arrest of the restrained person," the Court resisted equating this language with the creation of an enforceable right, noting a long-standing tradition of police discretion coexisting with apparently mandatory arrest statutes.[167] The Court also questioned whether finding that the statute contained mandatory language would have created a property right, as the wife, with no criminal enforcement authority herself, was merely an indirect recipient of the benefits of the governmental enforcement scheme.[168]
In Arnett v. Kennedy, a majority of the Court rebuffed an attempt to limit the expansion of due process with respect to entitlements.[169] The case involved a federal law that provided that employees could not be discharged except for cause. A minority of three Justices acknowledged that due process rights could be created through statutory grants of entitlements, but observed that the statute at issue specifically withheld the procedural protections the employee sought. Because "the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest,"[170] the employee would have to "take the bitter with the sweet."[171] Thus, the minority would have held that Congress (and by analogy state legislatures) could qualify the conferral of an interest by limiting the process that might otherwise be required. The other six Justices, although disagreeing among themselves in other respects, rejected that reasoning. "This view misconceives the origin of the right to procedural due process," Justice Lewis Powell wrote. "That right is conferred not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards."[172]
By contrast, in Bishop v. Wood, the Court accepted a district court's finding that a policeman held his position at will, despite language setting forth conditions for discharge.[173] Although the majority opinion was couched in terms of statutory construction, the majority appeared to come close to adopting the three-Justice Arnett position, and the dissenters accused the majority of having repudiated the majority position of the six Justices in Arnett.
Subsequently, however, the Court held that, because "minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse action."[174] The Court applied this analysis in Logan v. Zimmerman Brush Co., in which a state anti-discrimination law required the enforcing agency to convene a fact-finding conference within 120 days of the filing of the complaint.[175] The commission inadvertently scheduled the hearing after the expiration of the 120 days, and the state courts held the requirement to be jurisdictional, requiring dismissal of the complaint. The Supreme Court noted that various older cases had clearly established that causes of action were property, and, in any event, the claim at issue was an entitlement grounded in state law and thus could only be removed "for cause." That property interest existed independently of the 120-day period and could not be taken away by agency action or inaction.[176]
Civil Cases[edit | edit source]
Overview of Procedural Due Process in Civil Cases[edit | edit source]
If a state seeks to deprive a person of a protected life, liberty, or property interest, the Fourteenth Amendment's Due Process Clause requires that the state first provide certain procedural protections.[177] The Supreme Court has construed the Fourteenth Amendment's Due Process Clause to impose the same procedural due process limitations on the states as the Fifth Amendment does on the Federal Government.[178] Fifth Amendment due process case law is therefore relevant to the interpretation of the Fourteenth Amendment.[179]
The Court first addressed due process in the 1855 Fifth Amendment case Murray's Lessee v. Hoboken Land and Improvement Co.[180] In Murray's Lessee, the Court held that it would determine (independently from Congress) whether the government had provided due process by evaluating whether the statutory process conflicted with the Constitution and, if not, whether it comported with "those settled usages and modes of proceedings existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country."[181] In the 1884 Fourteenth Amendment case Hurtado v. California, the Court held that a process could be judged based on whether it had attained "the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law."[182] To hold that only historical, traditional procedures can constitute due process, the Court said, would render the law "incapable of progress or improvement."[183] The Supreme Court articulated the modern test for what process is required before the government may invade a protected interest in the 1976 case Mathews v. Eldridge.[184]
As a general matter, the Supreme Court has held that the constitutional requirement of procedural due process allows for variances in procedure "appropriate to the nature of the case."[185] Nonetheless, the Court's decisions have identified key goals and requirements of procedural due process that apply in many circumstances. The Court has explained that "[p]rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property."[186] Thus, the required elements of due process are those that "minimize substantively unfair or mistaken deprivations" by enabling persons to contest the basis upon which a state proposes to deprive them of protected interests.[187]
The core requirements of procedural due process are notice[188] and a hearing[189] before an impartial tribunal,[190] though specific requirements in each case vary based on the particular interests at stake.[191] Due process may also require other procedural protections such as an opportunity for confrontation and cross-examination, discovery, a decision based on the record, or the opportunity to be represented by counsel.[192] As long as the states provide adequate procedural protections, they possess significant discretion to structure courts and regulate state judicial proceedings,[193] set statutes of limitations,[194] and specify burdens of proof or evidentiary presumptions.[195] Except as otherwise noted, the following essays focus on procedural due process requirements in civil and administrative proceedings. Later essays discuss procedural due process requirements in criminal cases.[196]
Due Process Test in Mathews v. Eldridge[edit | edit source]
The requirements of due process depend on the nature of the interest at stake and the weight of that interest balanced against the opposing government interests.[197] The Supreme Court articulated the current standard for determining what process is required before the government may impair a protected interest in the 1976 case Mathews v. Eldridge.[198] The Mathews Court explained:
Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.Id. at 335.
Application of this standard is highly fact-dependent, as Mathews itself demonstrated. Mathews concerned termination of Social Security benefits. The Mathews Court compared the process required in the case before it with what was required in an earlier case involving termination of welfare benefits, Goldberg v. Kelly.[199] The termination of welfare benefits in Goldberg, which affected "persons on the very margin of subsistence" and could have resulted in the challenger's loss of food and shelter, had required a pre-deprivation hearing. By contrast, the Court held, the termination of Social Security benefits in Mathews required less protection because disability benefits are not based on financial need and a terminated recipient could apply for welfare if needed.[200] Moreover, while the Court had found a significant risk of erroneous deprivation in Goldberg, it found that the determination of ineligibility for Social Security benefits more often turns on routine and uncomplicated evaluations of data, reducing the likelihood of error. Finally, the Court noted that the administrative burden and other societal costs involved in giving Social Security recipients a pre-termination hearing would be high. Therefore, the Court concluded that due process was satisfied by a post-termination hearing with full retroactive restoration of benefits if the claimant prevails.[201]
While more recent cases often cite Mathews for the test the Court announced in that case, other roughly contemporaneous cases also show changes in the Court's approach to procedural due process in the 1970s. For instance, in cases involving debtors and installment buyers, the Court shifted its approach around the time of the Mathews decision, generally requiring less process before money or property could be seized. Earlier cases had focused upon the interests of the holders of the property in not being unjustly deprived of goods and funds in their possession and had thus leaned toward requiring pre-deprivation hearings. By contrast, newer cases look to the interests of creditors as well. In one 1974 case, the Court explained: "The reality is that both seller and buyer had current, real interests in the property, and the definition of property rights is a matter of state law. Resolution of the due process question must take account not only of the interests of the buyer of the property but those of the seller as well."[202]
To illustrate, the 1969 case Sniadach v. Family Finance Corp. mandated pre-deprivation hearings before wages could be garnished.[203] The Court appears to have limited Sniadach to instances when wages, and perhaps certain other basic necessities, are at issue and the consequences of deprivation would be severe.[204] The 1972 case Fuentes v. Shevin struck down a replevin statute that authorized the seizure of household goods purchased on an installment contract upon the filing of an ex parte application and the posting of bond.[205] The Court has also limited that case, holding that an appropriately structured ex parte judicial determination before seizure is sufficient to satisfy due process.[206] Thus, laws authorizing sequestration, garnishment, or other seizure of property of an alleged defaulting debtor need only require that (1) the creditor furnish adequate security to protect the debtor's interest, (2) the creditor make a specific factual showing before a neutral officer or magistrate, not a clerk or other such functionary, of probable cause to believe that he is entitled to the relief requested, and (3) an opportunity be assured for an adversary hearing promptly after seizure to determine the merits of the controversy, with the burden of proof on the creditor.[207]
The Court has applied Mathews in a broad range of contexts. Applying the standard in the context of government employment, the Court considered the interest of an employee in retaining his job, the governmental interest in the expeditious removal of unsatisfactory employees, the avoidance of administrative burdens, and the risk of an erroneous termination and concluded that due process requires some minimum pre-termination notice and opportunity to respond, followed by a full post-termination hearing, including an award of back pay if the employee is successful.[208] Where an adverse employment action does not rise to the level of termination of employment, the governmental interest is significant, and reasonable grounds for such action have been established separately, the Court has held that a prompt hearing held after the adverse action may be sufficient.[209]
In Brock v. Roadway Express, Inc., a plurality of the Court applied a similar analysis to governmental regulation of private employment, determining that an agency may order an employer to reinstate a whistleblower employee without an opportunity for a full evidentiary hearing, but that the employer is entitled to be informed of the substance of the employee's charges and to have an opportunity for informal rebuttal.[210] The principal difference from the Mathews test was that the Court acknowledged two conflicting private interests to weigh in the equation: that of the employer "in controlling the makeup of its workforce," and that of the employee in not being discharged for whistleblowing.[211]
In other cases, the government may dispense with hearings providing even minimum procedures when establishing grounds for a deprivation of a protected interest is so pro forma or routine that the likelihood of error is very small.[212] In a case dealing with state agency's negligent failure to observe a procedural deadline, the Court held that the claimant was entitled to a hearing with the agency to pass upon the merits of his claim prior to dismissal of his action.[213]
A delay in retrieving money paid to the government is unlikely to rise to the level of a violation of due process. In City of Los Angeles v. David, a citizen paid a $134.50 impoundment fee to retrieve an automobile that had been towed by the City.[214] When he subsequently sought to challenge the imposition of the impoundment fee, he was unable to obtain a hearing until 27 days after his car had been towed. The Court held that the delay was reasonable, as the private interest affected--the temporary loss of the use of the money--could be compensated by the addition of an interest payment to any refund of the fee. The Court also considered the fact that a thirty-day delay was unlikely to create a risk of significant factual errors, and that shortening the delay significantly would impose an administrative burden on the city.
In another context, the Supreme Court applied the Mathews test to strike down a provision in Colorado's Exoneration Act.[215] That statute required individuals whose criminal convictions had been invalidated to prove their innocence by clear and convincing evidence in order to recoup any fines, penalties, court costs, or restitution paid to the state as a result of the conviction. The Court, noting that "[a]bsent conviction of crime, one is presumed innocent,"[216] concluded that all three considerations under Mathews "weigh[ed] decisively against Colorado's scheme."[217] Specifically, the Court reasoned that (1) those affected by the Colorado statute have an "obvious interest" in regaining their funds;[218] (2) the burden of proving one's innocence by clear and convincing evidence unacceptably risked erroneous deprivation of those funds;[219] and (3) the state had "no countervailing interests" in withholding money to which it had "zero claim of right."[220] As a result, the Court held that the state could not impose "anything more than minimal procedures" for the return of funds that occurred as a result of a conviction that was subsequently invalidated.[221]
In other areas, the balancing standard of Mathews has resulted in states having greater flexibility in determining what process is required. For instance, when a state alters previously existing law, no hearing is required if a state affords the claimant an adequate alternative remedy, such as a judicial action for damages or breach of contract.[222] Thus, in considering corporal punishment in public schools, the Court held that the existence of common-law tort remedies for wrongful or excessive punishment, plus the context in which the punishment was administered (i.e., the ability of the teacher to observe directly the infraction in question, the openness of the school environment, the visibility of the confrontation to other students and faculty, and the likelihood of parental reaction to unreasonable punishment), reasonably assured the probability that a child would not be punished without cause or excessively.[223] The Court did not, however, inquire about the availability of judicial remedies for such violations in the state in which the case arose.[224]
The Court has required greater due process protection against property deprivations resulting from operation of established state procedures than those resulting from random and unauthorized acts of state employees.[225] Thus, the Court has held that post-deprivation procedures would not satisfy due process if it is the state system itself that destroys a complainant's property interest.[226] Although the Court briefly entertained the theory that a negligent (i.e., non-willful) action by a state official was sufficient to invoke due process, and that a post-deprivation hearing regarding such loss was required,[227] the Court subsequently overruled this holding, stating that "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property."[228]
In rare and extraordinary situations where summary action is necessary to prevent imminent harm to the public and the private interest infringed is reasonably deemed to be of less importance, the Court has held that the government can take action with no notice and no opportunity to defend, subject to a later full hearing.[229] Examples--most of which predate Mathews--include seizure of contaminated foods or drugs or other such commodities to protect the consumer,[230] collection of governmental revenues,[231] and the seizure of enemy property in wartime.[232] Citing national security interests, in a 1961 case the Court upheld an order issued without notice and an opportunity to be heard that excluded a short-order cook employed by a concessionaire from a Naval Gun Factory.[233] While the Court was ambivalent about a right-privilege distinction, it contrasted the limited interest of the cook--barred from the base, she was still free to work at a number of the concessionaire's other premises--with the government's interest in conducting a high-security program.[234] In the 1979 case Mackey v. Montrym, the Court applied the Mathews test and upheld a Massachusetts statute that mandated suspension of a driver's license because he refused to take a breath-analysis test upon arrest for drunk driving.[235] The Court cited pre-Mathews cases involving health and safety measures for the proposition that the Court has "traditionally accorded the states great leeway in adopting summary procedures to protect public health and safety."[236]
Notice of Charge and Due Process[edit | edit source]
The Supreme Court has explained that "[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."[237] The notice requirement may include an obligation to take "reasonable followup measures" that may be available upon learning that an attempt at notice has failed.[238] In addition, notice must be sufficient to enable the recipient to determine what is being proposed and what he must do to prevent the deprivation of his interest.[239] Ordinarily, service of notice must be reasonably structured to assure that the person to whom it is directed receives it.[240] However, the notice need not describe the legal procedures necessary to protect one's interest if the procedures are otherwise set out in published, generally available public sources.[241]
While due process often requires the government to provide a person with notice and an opportunity for a hearing before depriving the person of a protected interest,[242] there are some circumstances in which the Court has held those procedural protections are not required.[243] For instance, persons adversely affected by a law cannot challenge the law's validity on the ground that the legislative body that enacted it gave no notice of proposed legislation, held no hearings at which the person could have presented his arguments, and gave no consideration to particular points of view.[244] Similarly, when an administrative agency engages in a legislative function, for example by drafting regulations of general application, it need not hold a hearing prior to promulgation.[245] On the other hand, if a regulation affects an identifiable class of persons, the Court employs a multi-factor analysis to determine whether notice and hearing is required and, if so, whether it must precede such action.[246]
Opportunity for Meaningful Hearing[edit | edit source]
As a general matter, procedural due process requires an opportunity for a meaningful hearing to review a deprivation of a protected interest.[247] The Supreme Court has held that "some form of hearing is required before an individual is finally deprived of a property [or liberty] interest."[248] This right is a "basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment."[249] Thus, the notice of hearing and the opportunity to be heard must be granted at a meaningful time and in a meaningful manner.[250] However, the type of hearing required, and when the hearing must occur, depend on the specific circumstances at issue.
The Court has held that it is a violation of due process for a state to enforce a judgment against a party to a proceeding without having given him an opportunity to be heard sometime before final judgment is entered.[251] However, due process does not necessarily require affording a party the opportunity to present every available defense before entry of judgment. A person may be remitted to other actions initiated by him,[252] or an appeal may suffice. Accordingly, in one case the Court held that a company objecting to the entry of a judgment against it without notice and an opportunity to be heard on the issue of liability was not denied due process where the state provided the opportunity for a hearing on appeal from the judgment.[253] Nor could the company show a denial of due process based on the fact that it lost the opportunity for a hearing by inadvertently pursuing the wrong procedure in the state courts.[254] On the other hand, where a state appellate court reversed a trial court and entered a final judgment for the defendant, the Supreme Court held that the plaintiff was denied due process because he did not have an opportunity to introduce evidence in rebuttal to testimony that the trial court deemed immaterial but the appellate court considered material.[255]
In interpreting the analogous Due Process clause of the Fifth Amendment, the Court has held that due process does not require a trial-type hearing in every conceivable case of governmental impairment of private interest. For instance, the Court held that the summary exclusion on security grounds of a concessionaire's cook at the Naval Gun Factory, without hearing or advice as to the basis for the exclusion, did not violate due process.[256] In Hannah v. Larche, the Court upheld rules of procedure adopted by the Civil Rights Commission, under which state electoral officials and others accused of discrimination were not apprised of the identity of their accusers or accorded a right to confront and cross-examine witnesses or accusers testifying at such hearings.[257] In upholding the procedures, the Court opined that the Commission acts solely as an investigative and fact-finding agency and makes no adjudications. It further noted that additional procedural protections have not been granted by grand juries, congressional committees, or administrative agencies conducting purely fact-finding investigations that do not determine private rights.
With respect to actions taken by administrative agencies, the Court has held that the demands of due process do not require a hearing at the initial stage, or at any particular point in the proceeding, so long as a hearing is held before a final order becomes effective.[258] In Bowles v. Willingham, the Court sustained orders fixing maximum rents issued without a hearing at any stage, saying that "where Congress has provided for judicial review after the regulations or orders have been made effective it has done all that due process under the war emergency requires."[259] But in another case where the National Labor Relations Board undertook to void an agreement between an employer and a union after consideration of charges brought against the employer by an independent complaining union, the Court held that the union that formed the agreement was entitled to notice and an opportunity to participate in the proceedings.[260] Although a taxpayer must be afforded a fair opportunity for a hearing in connection with the assessment of taxes,[261] collection of taxes through summary administrative proceedings is lawful if the taxpayer is later afforded a hearing.[262]
When the Constitution requires a hearing, it requires a fair one, held before a tribunal that meets currently prevailing standards of impartiality.[263] A party must be given an opportunity not only to present evidence, but also to know the claims of the opposing party and to respond to them.[264] In administrative proceedings, a variance between the initial charges and the agency's ultimate findings will not invalidate the proceedings where the record shows that there was no misunderstanding as to the basis of the complaint.[265] The admission of evidence that would be inadmissible in judicial proceedings does not vitiate the order of an administrative agency.[266] An administrative hearing may consider hearsay evidence, and hearsay may constitute by itself substantial evidence in support of an agency determination, provided that there are assurances of the underlying reliability and probative value of the evidence and the claimant before the agency had the opportunity to subpoena the witnesses and cross-examine them.[267] However, a provision that an administrative body shall not be controlled by rules of evidence does not justify the issuance of orders without a foundation in evidence having rational probative force. Although the Court has recognized that in some circumstances a "fair hearing" implies a right to oral argument,[268] it has refused to lay down a general rule that would cover all cases.[269]
Impartial Decision Maker[edit | edit source]
The Due Process Clause requires that the decision to deprive a person of a protected interest be entrusted to an impartial decision maker. This rule applies to both criminal and civil cases.[270] The Supreme Court has explained that the "neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law" and "preserves both the appearance and reality of fairness . . . by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him."[271]
There is a "presumption of honesty and integrity in those serving as adjudicators," so the burden is on an objecting party to show a conflict of interest or some other reason for disqualification of a specific officer or for disapproval of an adjudicatory system as a whole. The Court has held that combining functions within an agency, such as by allowing members of a State Medical Examining Board to both investigate and adjudicate a physician's suspension, may raise substantial concerns, but does not by itself establish a violation of due process.[272] The Court has also held that the official or personal stake that school board members had in a decision to fire teachers who had engaged in a strike against the school system in violation of state law was not sufficient to disqualify them.[273]
Sometimes, to ensure an impartial tribunal, the Due Process Clause requires a judge to recuse himself from a case. In the 2009 case Caperton v. A. T. Massey Coal Co., the Court noted that "most matters relating to judicial disqualification [do] not rise to a constitutional level," and that "matters of kinship, personal bias, state policy, [and] remoteness of interest, would seem generally to be matters merely of legislative discretion."[274] The Court added, however, that "the Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has 'a direct, personal, substantial, pecuniary interest' in a case."[275] In addition, although "[p]ersonal bias or prejudice 'alone would not be sufficient basis for imposing a constitutional requirement under the Due Process Clause,'" there are "circumstances 'in which experience teaches that the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.'"[276] Those circumstances include "where a judge had a financial interest in the outcome of a case" or "a conflict arising from his participation in an earlier proceeding."[277]
In judicial recusal cases, the Court has explained, "[t]he inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is 'likely' to be neutral, or whether there is an unconstitutional 'potential for bias.'"[278] In Caperton, a company appealed a jury verdict of $50 million, and its chairman spent $3 million to elect a justice to the Supreme Court of Appeals of West Virginia at a time when "[i]t was reasonably foreseeable . . . that the pending case would be before the newly elected justice."[279] The justice was elected, declined to recuse himself, and joined a 3-2 decision overturning the jury verdict. The Supreme Court, in a 5-4 opinion written by Justice Anthony Kennedy, concluded that there was "a serious risk of actual bias--based on objective and reasonable perceptions--when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent."[280]
Subsequently, in the 2016 case Williams v. Pennsylvania, the Court found that the right of due process was violated when a judge on the Pennsylvania Supreme Court who participated in a case denying post-conviction relief to a prisoner convicted of first-degree murder and sentenced to death had, in his former role as a district attorney, given approval to seek the death penalty in the prisoner's case.[281] Relying on Caperton, which the Court viewed as having set forth an "objective standard" that requires recusal when the likelihood of bias on the part of the judge is "too high to be constitutionally tolerable,"[282] the Williams Court held that there is an impermissible risk of actual bias when a judge had previously had a "significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case."[283] The Court based its holding, in part, on earlier cases that had found impermissible bias occurs when the same person serves as both "accuser" and "adjudicator" in a case.[284] It reasoned that authorizing another person to seek the death penalty represents "significant personal involvement" in a case,[285] and took the view that the involvement of multiple actors in a case over many years "only heightens"--rather than mitigates--the "need for objective rules preventing the operation of bias that otherwise might be obscured."[286] As a remedy, the Court remanded the case for reevaluation by the reconstituted Pennsylvania Supreme Court. Notwithstanding the fact that the judge in question did not cast the deciding vote, the Williams Court viewed the judge's participation in the multi-member panel's deliberations as sufficient to taint the public legitimacy of the underlying proceedings and constitute reversible error.[287]
Additional Requirements of Procedural Due Process[edit | edit source]
Beyond the requirements of notice and a hearing before an impartial decision maker,[288] due process may also require other procedural protections such as an opportunity for confrontation and cross-examination of witnesses, discovery, a decision based on the record, or the opportunity to be represented by counsel.
With respect to confrontation and cross-examination of witnesses, the Supreme Court has held that "[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses."[289] Where the "evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealously," a party's right to show that it is untrue depends on the rights of confrontation and cross-examination. The Court has thus "been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny."[290]
With respect to discovery, the Court has held that criminal defendants have a due process right to discover exculpatory evidence held by the government[291] but has not directly confronted the questions of whether and when due process requires discovery in civil or administrative proceedings. However, in one case the Court observed in dictum that "where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue."[292] Some federal agencies have adopted discovery rules modeled on the Federal Rules of Civil Procedure, and the Administrative Conference of the United States has recommended that all do so.[293] There appear to be no cases, however, holding that they must.[294]
The Supreme Court has also held that due process requires decisions to be based on the record before the decision maker. Although this issue arises principally in the area of administrative law, it applies generally.[295] The Court has explained that a decision maker's conclusion "must rest solely on the legal rules and evidence adduced at the hearing. . . . [T]he decision maker should state the reasons for his determination and indicate the evidence he relied on, though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law."[296]
In some civil and administrative cases, due process requires that a party have the option to be represented by counsel.[297] In the 1970 case Goldberg v. Kelly, the Court held that a government agency must permit a welfare recipient who has been denied benefits to be represented by and assisted by counsel.[298] In a subsequent case, the Court established a presumption that an indigent litigant does not have the right to appointed counsel unless his "physical liberty" is threatened.[299] The Court has also held the fact that an indigent litigant may have a right to appointed counsel in some civil proceedings where incarceration is threatened does not mean that counsel must be made available in all such cases. Rather, the Court considers the circumstances in individual cases, and may hold that appointment of counsel is not required if the state provides appropriate alternative safeguards.[300]
Power of States to Regulate Procedures[edit | edit source]
In general, as long as parties receive sufficient notice,[301] an opportunity to defend their protected interests,[302] and any other required procedural safeguards,[303] the Due Process Clause of the Fourteenth Amendment does not specify the particular forms of procedure to be used in state courts.[304] The states may regulate the manner in which rights may be enforced and wrongs remedied,[305] and may create courts and endow them with such jurisdiction as, in the judgment of their legislatures, seems appropriate.[306] Whether legislative action in such matters is deemed to be wise or proves efficient, whether it causes hardship for a particular litigant, or perpetuates or supplants ancient forms of procedure, are issues that ordinarily do not implicate the Fourteenth Amendment. The Supreme Court has explained that the function of the Fourteenth Amendment is negative rather than affirmative[307] and in no way obligates the states to adopt specific measures of reform.[308]
A state may impose certain conditions on the right to institute litigation. However, foreclosure of all access to the courts through imposition of financial barriers is subject to constitutional scrutiny and must be justified by a state interest of suitable importance. Thus, the Court has upheld a state law that denied access to the courts to persons instituting stockholders' derivative actions unless reasonable security for the costs and fees incurred by the corporation is first tendered.[309] The Court has also held that a state, as the price of opening its tribunals to a nonresident plaintiff, may impose the condition that the nonresident stand ready to answer all cross actions filed and accept any in personam judgments obtained by a resident defendant through service of process or appropriate pleading upon the plaintiff's attorney of record.[310] For similar reasons, the Court did not deem arbitrary or unreasonable a requirement for a chemical analysis as a condition precedent to a suit to recover for damages to crops from allegedly deficient fertilizers, where other evidence was also allowed.[311] By contrast, where a state has monopolized the avenues for settling disputes between persons by prescribing judicial resolution, and where a dispute involves a fundamental interest, such as marriage and its dissolution, the state may not deny access to persons unable to pay its fees.[312]
Just as a state may condition the right to institute litigation, it may also establish terms for raising certain defenses. For instance, the Court has held that a state may validly provide that a person sued in a possessory action cannot bring an action to try title until after judgment is rendered and he has paid the judgment.[313] A state may limit available defenses in an action to evict tenants for nonpayment of rent to the issue of payment and leave the tenants to other remedial actions at law on a claim that the landlord had failed to maintain the premises.[314] A state may also provide that the doctrines of contributory negligence, assumption of risk, and fellow servant do not bar recovery in certain employment-related accidents; the Court has held that no person has a vested right in such defenses.[315] Similarly, a nonresident defendant in a suit begun by foreign attachment cannot challenge the validity of a statute that requires him to give bail or security for the discharge of the seized property before permitting him an opportunity to appear and defend, even if he has no resources or credit other than the property attached.[316]
Once a suit is underway, the amendment of pleadings is largely within the discretion of the trial court and, absent a gross abuse of discretion, there is no ground for reversal. Thus, in one case, the Court found no denial of due process in rendition of a foreclosure decree without leave to file a supplementary answer that sought to raise a meritless defense.[317]
The Due Process Clause allows states significant discretion in whether to provide for jury trials or appeals in civil cases. Unlike in criminal trials,[318] the Court has not deemed jury trials essential to due process in state civil proceedings, and has not interpreted the Fourteenth Amendment to restrain the states in retaining or abolishing civil juries.[319] Thus, the Court has upheld state laws abolishing juries in proceedings to enforce liens,[320] mandamus[321] and quo warranto[322] actions, and eminent domain[323] and equity proceedings.[324] States are also free to adopt innovations respecting selection and number of jurors. States may allow verdicts to be rendered by ten out of twelve jurors rather than a unanimous jury,[325] and may establish petit juries containing eight jurors rather than the conventional twelve.[326]
If a full and fair trial on the merits is provided, due process does not require a state to provide appellate review.[327] But, if an appeal is afforded, the state must not structure it so as to arbitrarily deny to some persons the right or privilege available to others.[328]
State legislatures and state courts have substantial discretion to allocate the costs of litigation and impose awards of damages or financial penalties. The Supreme Court has held that it is up to courts to determine what costs are allowed by law, and an erroneous judgment of what the law allows does not deprive a party of property without due process of law.[329] Nor does a statute providing for the recovery of reasonable attorney's fees in actions on small claims subject unsuccessful defendants to any unconstitutional deprivation.[330]
The Court has also upheld against due process challenge a statutory procedure whereby a prosecutor is adjudged liable for costs, and committed to jail in default of payment thereof, when the court or jury finds that he instituted the prosecution without probable cause and from malicious motives.[331] Also, a state may permit harassed litigants to recover penalties in the form of attorney's fees or damages as a reasonable incentive for prompt settlement without suit of just demands of a class receiving special legislative treatment, such as common carriers and insurance companies together with their patrons.[332]
By virtue of its plenary power to prescribe the character of the sentence which shall be awarded against those found guilty of crime, a state may provide that a public officer embezzling public money shall be imprisoned and also pay a fine equal to double the amount embezzled, which shall operate as a judgment for the use of persons whose money was embezzled, even if the defendant has made restitution.[333] The Court has explained that, whether the fine is understood as a penalty or punishment or a civil judgment, the convict is required to pay it as the result of his or her crime. On the other hand, when an appellant was held in contempt for frustrating enforcement of a judgment against it by refusing to surrender certain assets, the Court held that dismissal of an appeal from the original judgment was not a penalty for the contempt, but merely a reasonable method for sustaining the effectiveness of the state's judicial process.[334]
To deter careless destruction of human life, a state may allow punitive damages in actions against employers for deaths caused by the negligence of their employees,[335] and may also allow punitive damages for fraud perpetrated by employees.[336] Also constitutional is the traditional common law approach for measuring punitive damages, granting the jury wide but not unlimited discretion to consider the gravity of the offense and the need to deter similar offenses.[337] Although the Excessive Fines Clause of the Eighth Amendment "does not apply to awards of punitive damages in cases between private parties,"[338] the Court has indicated that a "grossly excessive" award of punitive damages violates substantive due process, as the Due Process Clause limits the amount of punitive damages to what is "reasonably necessary to vindicate the State's legitimate interests in punishment and deterrence."[339] A court may determine the applicable limits by examining the degree of reprehensibility of the act, the ratio between the punitive award and plaintiff's actual or potential harm, and the legislative sanctions provided for comparable misconduct.[340] In addition, the Due Process Clause "forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties."[341]
Statutes of Limitations and Procedural Due Process[edit | edit source]
A statute of limitations is a law that imposes a time limit for bringing a case; once the statute of limitations expires, a person cannot pursue even an otherwise valid claim. The Supreme Court has imposed few due process limits on state laws that create, alter, or eliminate statutes of limitations for civil suits.[342]
The Court has held that a statute of limitations does not deprive a person of property without due process of law, unless it applies to an existing right of action in a way that unreasonably limits the opportunity to enforce the right by suit. By the same token, a state may shorten an existing statute of limitations, provided that the state allows a reasonable time for bringing an action after the passage of the statute and before the bar takes effect. What constitutes a reasonable period depends on the nature of the right and the particular circumstances.[343]
A state may also extend the time in which civil suits may be brought in its courts and may even entirely remove a statutory bar to the commencement of litigation. The Court has held that the repeal or extension of a statute of limitations does not impose an unconstitutional deprivation of property on a debtor-defendant who previously might have invoked the statute as a defense. The Court explained, "A right to defeat a just debt by the statute of limitation . . . [is not] a vested right" protected by the Constitution.[344] Accordingly, the Court has upheld against Fourteenth Amendment challenges to the revival of an action on an implied obligation to pay a child for the use of her property,[345] a suit to recover the purchase price of securities sold in violation of a Blue Sky Law,[346] and a right of an employee to seek an additional award out of a state-administered fund on account of the aggravation of a former injury.[347]
However, when a right of action to recover property has been barred by a statute of limitations and title as well as real ownership have become vested in the possessor, the Court has held that any later act removing or repealing the statute of limitations would be void as attempting an arbitrary transfer of title.[348] The Court has also held unconstitutional the application of a statute of limitation to extend a period that parties to a contract agreed should limit their right to remedies under the contract.[349]
Burdens of Proof and Presumptions[edit | edit source]
State legislatures have the authority to establish presumptions and rules respecting the burden of proof in litigation.[350] However, the Supreme Court has held that the Due Process Clause forbids the deprivation of liberty or property upon application of a standard of proof too lax to ensure reasonably accurate fact-finding. The Court has opined that "[t]he function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact-finding, is to 'instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'"[351] With respect to presumptions, the Court has held that a presumption does not violate the Due Process Clause as long as it is not unreasonable and is not conclusive. A statute creating a presumption that is entirely arbitrary and operates to deny a fair opportunity to rebut it or to present facts pertinent to a defense is void.[352] On the other hand, the Court has sustained legislation declaring that the proof of one fact or group of facts shall constitute prima facie evidence of a main or ultimate fact if there is a rational connection between what is proved and what is inferred.[353]
Applying the test laid out in Mathews v. Eldridge to determine what process is due in a particular situation,[354] the Court has held that a standard at least as stringent as "clear and convincing" evidence is required in a civil proceeding to commit an individual involuntarily to a state mental hospital for an indefinite period.[355] Similarly, because parents' interest in retaining custody of their children is fundamental, the state may not terminate parental rights by a preponderance of the evidence--the burden of proof to award money damages in an ordinary civil action--but must prove that parents are unfit by clear and convincing evidence.[356] Furthermore, parental unfitness must be established affirmatively and may not be assumed based on some characteristic of the parent.[357]
For a time, the Court used what it called the "irrebuttable presumption doctrine" to curb legislative efforts to confer a benefit or to impose a detriment based on presumed characteristics of a person.[358] In Stanley v. Illinois, the Court found invalid a construction of the state statute that presumed unmarried fathers to be unfit parents and prevented them from objecting to state wardship.[359] The Court likewise struck down mandatory maternity leave rules requiring pregnant teachers to take unpaid maternity leave at a set time prior to the date of the expected births of their babies based on a conclusive presumption that every pregnant teacher who reaches a particular point of pregnancy becomes physically incapable of teaching.[360]
In another case, the Court opined that a state may require that nonresidents pay higher tuition charges at state colleges than residents and assumed that a durational residency requirement would be permissible as a prerequisite to qualify for the lower tuition, but held it was impermissible for the state to presume conclusively that because the legal address of a student was outside the state at the time of application or at some point during the preceding year he was a nonresident as long as he remained a student. Instead, the Due Process Clause required that the student have the opportunity to show that he is or has become a bona fide resident entitled to the lower tuition.[361] Similarly, the Court invalidated a food stamp program provision making ineligible any household with a member age eighteen or over who was claimed as a dependent for federal income tax purposes the prior tax year by a person not himself eligible for stamps, holding that the provision created a conclusive presumption that fairly often could be shown to be false if evidence could be presented.[362] The rule that emerged from these cases was that the legislature may not presume the existence of a decisive characteristic based on a given set of facts, unless it can be shown that the defined characteristics do in fact encompass all persons and only those persons that the legislature intended to reach.[363]
The Court limited the irrebuttable presumption doctrine in the 1975 case Weinberger v. Salfi, upholding a Social Security provision requiring that the spouse of a covered wage earner must have been married to the wage earner for at least nine months prior to his death in order to receive benefits as a spouse.[364] Purporting to approve but distinguish prior cases, the Court imported traditional equal protection analysis into considerations of due process challenges to statutory classifications.[365] The Court opined that extension of the prior cases to government entitlement classifications, such as the Social Security Act qualification standard before it, would "turn the doctrine of those cases into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution."[366]
There is some uncertainty about the viability and scope of the irrebuttable presumption doctrine since Salfi, and the doctrine has rarely appeared on the Court's docket in recent years.[367] In Turner v. Department of Employment Security, decided after Salfi, the Court invalidated a statute making pregnant women ineligible for unemployment compensation for a period extending from twelve weeks before the expected birth until six weeks after childbirth.[368] By contrast, in Usery v. Turner Elkhorn Mining Co., the Court held that a provision granting benefits to miners "irrebuttably presumed" to be disabled is merely a way of giving benefits to all those with the condition triggering the presumption.[369]
Criminal Cases[edit | edit source]
Overview of Procedural Due Process in Criminal Cases[edit | edit source]
The Fourteenth Amendment's guarantee of procedural due process affects procedures in state criminal cases in two ways. First, through the doctrine of incorporation, the Supreme Court has held that the Due Process Clause applies to the states nearly all the criminal procedural guarantees of the Bill of Rights, including those of the Fourth, Fifth, Sixth, and Eighth Amendments.[370] Second, the Court has held that the Due Process Clause prohibits government practices and policies that violate precepts of fundamental fairness, even if they do not violate specific guarantees of the Bill of Rights.[371] The procedural due process protections of the Fourteenth Amendment are comparable in scope to the limitations that the Fifth Amendment imposes on federal criminal proceedings.[372]
The Court has explained, "Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. . . . What is fair in one set of circumstances may be an act of tyranny in others."[373] In assessing whether a challenged criminal procedure denies a person procedural due process, the Court generally considers whether the practice violates "a fundamental principle of liberty and justice which inheres in the very idea of a free government and is the inalienable right of a citizen of such government."[374] The Court has also held that, "as applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice," and that to find a denial of due process the Court "must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial."[375]
Procedural due process analysis contains a historical component, as Supreme Court cases "have proceeded upon the valid assumption that state criminal processes are not imaginary and theoretical schemes but actual systems bearing virtually every characteristic of the common-law system that has been developing contemporaneously in England and in this country."[376] The Court thus asks "whether given this kind of system a particular procedure is fundamental--whether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty."[377]
Impartial Judge and Jury[edit | edit source]
Bias or prejudice either inherent in the structure of a trial system or imposed by external events can infringe a person's right to a fair trial. Thus, as in the civil context,[378] procedural due process requires criminal cases to be overseen by an unbiased judge and decided by an impartial jury.
For instance, in Tumey v. Ohio, the Supreme Court held that it violated due process for a judge to receive compensation out of fines imposed on convicted defendants, and no compensation (beyond his salary) "if he does not convict those who are brought before him."[379] In other cases, the Court has found that contemptuous behavior in court may affect the impartiality of the presiding judge, so as to disqualify the judge from citing and sentencing the contemnors.[380]
The Court has also found due process violations when a biased or otherwise partial juror participated in a criminal trial, although there is no presumption that all jurors with a potential bias are in fact prejudiced.[381] Public hostility toward a defendant that intimidates a jury is a classic due process violation.[382] More recently, concern with the impact of prejudicial publicity upon jurors and potential jurors has caused the Court to instruct trial courts that they should be vigilant to guard against such prejudice and to curb both the publicity and the jury's exposure to it.[383] For instance, the Supreme Court has raised concerns about the impact on a jury of televising trials, though ultimately the Court has held that the Constitution does not altogether preclude televising state criminal trials.[384]
The way a criminal defendant appears in court may also raise due process concerns about jury impartiality. The Court has held that it violates due process when the accused is compelled to stand trial before a jury while dressed in identifiable prison clothes, because it may impair the presumption of innocence in the minds of the jurors.[385] Likewise, Court has held that the use of visible physical restraints, such as shackles, leg irons, or belly chains, in front of a jury, raises due process concerns. In Deck v. Missouri, the Court noted a rule dating back to British common law against bringing a defendant to trial in irons, and a modern day recognition that such measures should be used "only in the presence of a special need."[386] The Court found that the use of visible restraints during the guilt phase of a trial undermines the presumption of innocence, limits the ability of a defendant to consult with counsel, and "affronts the dignity and decorum of judicial proceedings."[387] The Court in Deck disapproved of the routine use of visible restraints when a defendant has already been found guilty and a jury is considering the application of the death penalty. The Court explained that such restraints can be used only in special circumstances, such as where a judge has made particularized findings that security or flight risk requires it.[388]
Identification in Pre-Trial Process[edit | edit source]
In criminal trials, the jury usually decides the reliability and weight to be accorded an eyewitness identification, guided by instructions from the trial judge and subject to judicial authority under the rules of evidence to exclude overly prejudicial or misleading evidence. At times, however, a defendant alleges that an out-of-court identification in the presence of police is so flawed that it is inadmissible as a matter of fundamental justice under the Due Process Clause.[389] These cases most commonly challenge police-arranged procedures such as lineups, showups, and photographic displays,[390] but some challenge identifications with less police involvement.[391]
The Court generally disfavors judicial suppression of eyewitness identifications on due process grounds in lieu of having identification testimony tested in the normal course of the adversarial process.[392] Two elements are required for due process-based suppression. First, law enforcement officers must have participated in an identification process that was both suggestive and unnecessary.[393] Second, the identification procedures must have created a substantial prospect for misidentification. Determination of these elements is made by examining the "totality of the circumstances" of a case.[394] The Court has not recognized any per se rule for excluding an eyewitness identification on due process grounds.[395] Defendants have had difficulty meeting the Court's standards: Only one challenge has been successful.[396]
Plea Bargaining in Pre-Trial Process[edit | edit source]
A criminal defendant may elect to plead guilty instead of requiring that the prosecution prove him guilty. Often, a defendant who pleads guilty does so as part of a "plea bargain" with the prosecution, where the defendant is guaranteed a lighter sentence or is allowed to plead guilty to a lesser offense.[397] The Supreme Court has held that the government may not structure its system to coerce a guilty plea.[398] However, the Court has upheld guilty pleas that are entered voluntarily, knowingly, and understandingly, even if the defendant pled guilty to obtain an advantage.[399]
The guilty plea and the often concomitant plea bargain are important components of the criminal justice system,[400] and it is permissible for a prosecutor negotiating a plea bargain to require a defendant to forgo his right to a trial in return for escaping additional charges that are likely upon conviction to result in a more severe penalty.[401] A defendant who pleads guilty gives up the right to challenge most aspects of the proceeding against him. However, some constitutional challenges may survive a plea if they go to "'the very power of the State' to prosecute the defendant."[402] Moreover, a prosecutor denies due process if he penalizes the assertion of a right or privilege by the defendant by charging more severely or recommending a longer sentence.[403]
In accepting a guilty plea, a court must inquire whether the defendant is pleading voluntarily, knowingly, and understandingly.[404] The Court has also held that "the adjudicative element" inherent in accepting a guilty plea must include safeguards "to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that, when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled."[405]
Guilt Beyond a Reasonable Doubt[edit | edit source]
Absent a guilty plea,[406] the Due Process Clause requires proof beyond a reasonable doubt before a person may be convicted of a crime. The reasonable doubt standard is closely related to the rule that a defendant is presumed innocent unless proven guilty.[407] These rules help to ensure a defendant a fair trial[408] and require that a jury consider a case solely on the evidence.[409] The Supreme Court has explained:
The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence--that bedrock "axiomatic and elementary" principle whose "enforcement lies at the foundation of the administration of our criminal law."In re Winship, 397 U.S. 358, 363 (1970) (quoting Coffin, 156 U.S. at 453). Justice John Marshall Harlan's concurrence in In re Winship proceeded on the basis that, because there is likelihood of error in any system of reconstructing past events, the error of convicting the innocent should be reduced to the greatest extent possible through the use of the reasonable doubt standard. Id. at 368.
For many years, the Court presumed that "reasonable doubt" was the proper standard for criminal cases.[410] However, because the standard was so widely accepted, it was not until 1970 that the Court expressly held that due process required the standard. That year, the Court held in In re Winship that the Due Process Clauses of the Fifth and Fourteenth Amendments protect the accused against conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."[411]
The Court had long held under the Due Process Clause that it must set aside convictions that are supported by no evidence at all.[412] However, the holding in Winship left open the question of whether appellate courts reviewing criminal convictions should weigh the sufficiency of trial evidence. In the 1979 case Jackson v. Virginia, the Court held that federal courts, on direct appeal of federal convictions or collateral review of state convictions, must satisfy themselves that the evidence on the record could reasonably support a finding of guilt beyond a reasonable doubt.[413] The appropriate inquiry is not whether the reviewing court itself believes the evidence at the trial established guilt beyond a reasonable doubt, but whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.[414]
Due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged.[415] Thus, the Court held in Mullaney v. Wilbur that it was unconstitutional to require a defendant charged with murder to prove that he acted "in the heat of passion on sudden provocation" in order to reduce his offense from homicide to manslaughter.[416] The Court indicated that a balancing-of-interests test should be used to determine when the Due Process Clause required the prosecution to carry the burden of proof and when some part of the burden might be shifted to the defendant. The decision called into question practices in many states under which some burdens of persuasion were borne by the defense, and raised the prospect that the prosecution must bear all burdens of persuasion--a significant task given the large numbers of affirmative defenses.[417]
In a subsequent case, however, the Court rejected the argument that Mullaney means that the prosecution must negate an insanity defense.[418] Later, in Patterson v. New York, the Court upheld a state statute that required a defendant asserting extreme emotional disturbance as an affirmative defense to murder to prove the defense by a preponderance of the evidence.[419] According to the Court, the constitutional deficiency in Mullaney was that the statute made malice an element of the offense, permitted malice to be presumed upon proof of the other elements, and then required the defendant to prove the absence of malice. In Patterson, by contrast, the statute obligated the state to prove each element of the offense (including death, intent to kill, and causation) beyond a reasonable doubt, while allowing the defendant to prove by preponderance of the evidence an affirmative defense that would reduce the degree of the offense.[420]
Another distinction that can substantially affect the prosecution's burden is whether a fact to be proven in a criminal trial is an element of a crime or a factor in determining a convicted offender's sentence. Although a criminal conviction is generally established by a jury using the "beyond a reasonable doubt" standard, sentencing factors are generally evaluated by a judge using few evidentiary rules and under the more lenient "preponderance of the evidence standard." The Court has taken a formalistic approach to this issue, allowing states to designate which facts fall under which of these two categories. For instance, the Court has held that a state may designate as a sentencing factor the question whether a defendant "visibly possessed a gun" during a crime, allowing a judge to resolve the question based on the preponderance of evidence.[421]
Although the Court has generally deferred to the legislature's characterizations in this area, it limited that principle in Apprendi v. New Jersey, holding that a sentencing factor cannot be used to increase the maximum penalty imposed for the underlying crime.[422] The Court subsequently overruled conflicting prior case law that had held constitutional the use of aggravating sentencing factors by judges when imposing capital punishment.[423] These holdings are subject to at least one exception, however, as the Apprendi Court held that its limitation does not apply to sentencing enhancements based on recidivism.[424] Legislatures might also evade these limitations by revising criminal provisions to increase maximum penalties, then providing for mitigating factors that could reduce sentences within the newly established sentencing ranges.
An issue related to the burden of proof involves statutory presumptions, where proof of a "presumed fact" that is a required element of a crime is established through proof of another fact, known as the "basic fact."[425] In Tot v. United States, the Court held that a statutory presumption was valid under the Due Process Clause only if it met a "rational connection" test.[426] In that case, the Court struck down a presumption that a person possessing an illegal firearm had shipped, transported, or received the firearm in interstate commerce. "Under our decisions," it explained, "a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from the proof of the other is arbitrary because of lack of connection between the two in common experience."[427]
In Leary v. United States, the Court applied a more stringent due process test to require that, for a "rational connection" to exist, it must "at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend."[428] The Leary Court struck down a provision that permitted a jury to infer from a defendant's possession of marijuana his knowledge of its illegal importation. A lengthy canvass of factual materials established to the Court's satisfaction that, although the greater part of marijuana consumed in the United States was of foreign origin, there was still a significant amount produced domestically, and there was no way to assure that the majority of those possessing marijuana have any reason to know whether their marijuana is imported.[429] The Court left open the question of whether a presumption that survived the "rational connection" test "must also satisfy the criminal 'reasonable doubt' standard if proof of the crime charged or an essential element thereof depends upon its use."[430]
In a later case, a closely divided Court drew a distinction between mandatory presumptions, which a jury must accept, and permissive presumptions, which may be presented to the jury as part of all the evidence to be considered. With respect to mandatory presumptions, "since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption, unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt."[431] But, with respect to permissive presumptions,
the prosecution may rely on all of the evidence in the record to meet the reasonable doubt standard. There is no more reason to require a permissive statutory presumption to meet a reasonable-doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted. As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the test described in Leary.442 U.S. at 167.
Applying that analysis, the Court concluded that a statute providing that the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle did not violate due process.[432]
Evidentiary Requirements in Criminal Cases[edit | edit source]
Beyond the general rule that the prosecution must prove a criminal defendant's guilt beyond a reasonable doubt,[433] the Due Process Clause also imposes certain limitations on specific evidentiary matters in criminal trials. For instance, a court may not restrict the basic due process right to testify in one's own defense by automatically excluding hypnotically refreshed testimony.[434] And, though a state may require a defendant to give pretrial notice of an intention to rely on an alibi defense and to furnish the names of supporting witnesses, due process calls for reciprocal discovery in such circumstances, requiring the state to give the defendant pretrial notice of its rebuttal evidence on the alibi issue.[435]
In evaluating whether certain procedures satisfy due process, the Court may consider how separate procedures interact. The combination of otherwise acceptable rules of criminal procedure may in some instances deny a defendant due process. Thus, in one case, the Court found that a defendant was denied his constitutional right to present his defense in a meaningful way by the combination of two rules that (1) denied the defendant the right to cross-examine his own witness in order to elicit exculpatory evidence and (2) denied him the right to introduce the testimony of witnesses about matters told to them out of court on the ground that the testimony would be hearsay.[436] Conversely, a questionable procedure may be saved by its combination with another. Thus, in another case, the Court held that it does not deny a defendant due process to subject him to trial before a non-lawyer police court judge when he can obtain a later trial de novo in the state's court system.[437]
The government violates the Due Process Clause when it obtains a conviction by presenting testimony the prosecuting authorities know was perjured. In one case, the Court stated in dictum that the clause
cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance . . . is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.Mooney v. Holohan, 294 U.S. 103, 112 (1935).
The Court has applied that principle to require state officials to controvert allegations that knowingly false testimony had been used to convict[438] and to overturn convictions found to have been so procured.[439] Extending the principle, the Court in Miller v. Pate overturned a conviction obtained after the prosecution had represented to the jury that a pair of men's shorts found near the scene of a crime belonged to the defendant and that they were stained with blood; the defendant showed in a habeas corpus proceeding that no evidence connected him with the shorts, the shorts were not in fact bloodstained, and the prosecution had known those facts.[440]
This line of reasoning has also required disclosure to the defense of information that the prosecution did not rely on at trial.[441] In Brady v. Maryland, the Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."[442] In that case, the prosecution had suppressed an extrajudicial confession of defendant's accomplice that he had actually committed the murder.[443] In a subsequent case, the Court described the "heart of the holding in Brady" as concerning
the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence.Moore v. Illinois, 408 U.S. 786, 794-95 (1972) (finding Brady inapplicable because the evidence withheld was not material and not exculpatory). See also Wood v. Bartholomew, 516 U.S. 1 (1995) (per curiam) (holding no due process violation where prosecutor's failure to disclose the result of a witness' polygraph test would not have affected the outcome of the case). The Court has not extended Brady toward a general requirement of criminal discovery. See Giles v. Maryland, 386 U.S. 66 (1967). In Cone v. Bell, 556 U.S. 449, 472, 476 (2009), the Court emphasized the distinction between the materiality of the evidence with respect to guilt and the materiality of the evidence with respect to punishment, and concluded that, although the evidence that had been suppressed was not material to the defendant's conviction, the lower courts had erred in failing to assess its effect with respect to the defendant's capital sentence.
In United States v. Agurs, the Court summarized and expanded the prosecutor's obligation to disclose exculpatory evidence to the defense, even in the absence of a request by the defendant, or upon a general request.[444] The Agurs Court laid out three due process principles that apply to the use of evidence in criminal cases. First, if the prosecutor knew or should have known that testimony given during the trial was perjured, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.[445] Second, as established in Brady, if the defense specifically requested certain evidence and the prosecutor withheld it, the conviction must be set aside if the suppressed evidence might have affected the outcome of the trial.[446] Third, as the Court held for the first time in Agurs, if the defense did not make a request at all, or simply asked for "all Brady material" or for "anything exculpatory," the prosecution has a duty to reveal to the defense obviously exculpatory evidence.[447] Under the third prong, if the prosecutor did not reveal relevant information, reversal of a conviction may be required, but only if the undisclosed evidence creates a reasonable doubt as to the defendant's guilt.[448]
Agurs left open questions about how courts should evaluate the materiality of undisclosed evidence. The Court addressed those questions in the 1985 case United States v. Bagley.[449] In Bagley, the Court established a uniform test for materiality, holding that evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.[450] That materiality standard, also found in contexts outside of Brady inquiries,[451] applies not only to exculpatory material, but also to material that would be relevant to the impeachment of witnesses.[452] Thus, in a case where inconsistent earlier statements by a witness to an abduction were not disclosed, the Court weighed the specific effect that impeachment of the witness would have had on establishing the required elements of the crime and the punishment, concluding that there was no reasonable probability that the jury would have reached a different result.[453]
The Supreme Court has also held that "Brady suppression occurs when the government fails to turn over even evidence that is 'known only to police investigators and not to the prosecutor'," and that "'the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police.'"[454]
Competency for Trial[edit | edit source]
The Supreme Court has held that it is a denial of due process to try or sentence a defendant who is "insane" or incompetent to stand trial.[455] When it becomes evident during the trial that a defendant is or has become "insane" or incompetent, the court on its own initiative must conduct a hearing on the issue.[456] There is no constitutional requirement that the state assume the burden of proving a defendant competent, though the state must provide the defendant with a chance to prove that he is incompetent to stand trial. Thus, a statutory presumption that a criminal defendant is competent to stand trial or a requirement that the defendant bear the burden of proving incompetence by a preponderance of the evidence does not violate due process.[457]
A person found incompetent for trial may be committed to a psychiatric institution, but a state cannot indefinitely commit a person charged with a criminal offense based on a finding of incompetence to stand trial. Rather, a court has the power to commit the accused for a period no longer than is necessary to determine whether there is a substantial probability that he will attain his capacity in the foreseeable future. If it is determined that he will not, the state must either release the defendant or institute the ordinary civil commitment proceeding that would be required to commit any other citizen.[458]
When a defendant is found competent to stand trial, the state has significant discretion in how it takes account of any mental illness or defect that affected the defendant at the time of the offense in determining criminal responsibility.[459] The Court has identified several tests that states use in varying combinations to assess insanity defenses: the M'Naghten test (cognitive incapacity or moral incapacity),[460] volitional incapacity,[461] and the irresistible-impulse test.[462] Based on these varying tests, the Court has opined that "it is clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice."[463] To illustrate, in the 2020 case Kahler v. Kansas, the Court held that the Due Process Clause does not require a state to adopt M'Naghten's moral-incapacity test as a complete insanity defense resulting in an acquittal.[464] The Court stated that "[d]efining the precise relationship between criminal culpability and mental illness," because it involves "hard choices" among competing values and evolving understandings of mental health, "is a project for state governance, not constitutional law."[465]
Despite the requirement that states prove each element of a criminal offense,[466] criminal trials generally proceed with a presumption that the defendant does not have a severe mental illness, and states may limit the evidence that a defendant may present to challenge that presumption. In Clark v. Arizona, the Court considered a rule adopted by the Supreme Court of Arizona that prohibited the use of expert testimony regarding mental disease or mental capacity to show lack of mens rea, ruling that the use of such evidence could be limited to an insanity defense.[467] The Clark Court weighed competing interests to hold that such evidence could be "channeled" to the issue of insanity due to "the controversial character of some categories of mental disease," the "potential of mental disease evidence to mislead," and the "danger of according greater certainty to such evidence than experts claim for it."[468]
If a criminal defendant is acquitted by reason of insanity, due process does not bar commitment of the defendant to a mental hospital, and the period of confinement may extend beyond the period for which he could have been sentenced to prison if convicted.[469] The Court has explained that the purpose of confinement is not punishment, but treatment, and therefore the length of a possible criminal sentence is "irrelevant to the purposes of . . . commitment."[470] Thus, a defendant acquitted by reason of insanity may be confined for treatment "until such time as he has regained his sanity or is no longer a danger to himself or society."[471] However, a state may not indefinitely confine an insanity defense acquittee who is no longer mentally ill but who has an untreatable personality disorder that may lead to criminal conduct.[472]
Substantive due process issues may arise if the government seeks to compel the medication of a person found to be incompetent to stand trial. In Washington v. Harper, the Court had found that an individual has a significant "liberty interest" in avoiding the unwanted administration of antipsychotic drugs.[473] In Sell v. United States, the Court found that this liberty interest could in "rare" instances be outweighed by the government's interest in bringing an incompetent individual to trial.[474] First, however, the government must engage in a fact-specific inquiry as to whether that interest is important in a particular case.[475] Second, the court must find that the treatment is likely to render the defendant competent to stand trial without resulting in side effects that will interfere with the defendant's ability to assist counsel. Third, the court must find that less intrusive treatments are unlikely to achieve substantially the same results. Finally, the court must conclude that administration of the drugs is in the patient's best medical interests.[476]
Due Process Rights of Juvenile Offenders[edit | edit source]
All fifty states and the District of Columbia have specialized laws to deal with juvenile offenders outside the criminal justice system for adult offenders.[477] Juvenile justice systems handle both offenses that would be criminal if committed by an adult and delinquent behavior not recognizable under laws dealing with adults, such as habitual truancy, conduct endangering the morals or health of the juvenile or others, or disobedience making the juvenile uncontrollable by his parents. Reforms during the early part of the twentieth century provided for separating juveniles from adult offenders in adjudication, detention, and correctional facilities, but they also dispensed with the substantive and procedural rules that due process required in criminal trials. The justification for this lack of constitutional protections was that juvenile courts were deemed to be civil, not criminal, and that the state was acting as parens patriae for juvenile offenders and was not their adversary.[478]
In the 1960s, however, the Supreme Court imposed substantial restriction of these elements of juvenile jurisprudence. After tracing in much detail this history of juvenile courts, the Court held in In re Gault that the application of due process to juvenile proceedings would not endanger the good intentions vested in the system nor diminish the beneficial features of the system--emphasis upon rehabilitation rather than punishment, a measure of informality, avoidance of the stigma of criminal conviction, and low visibility of the process--but that the consequences of the absence of due process standards made their application necessary.[479]
Thus, the Court in Gault required notice of charges in time for the juvenile to prepare a defense, a hearing in which the juvenile could be represented by retained or appointed counsel, observance of the rights of confrontation and cross-examination, and protections against self-incrimination.[480] The Court also held that before a juvenile could be "waived" to an adult court for trial, there had to be a hearing and findings of reasons.[481] Subsequently, the Court held that the "essentials of due process and fair treatment" required that a juvenile could be adjudged delinquent only on evidence beyond a reasonable doubt when the offense charged would be a crime if committed by an adult.[482] However, the Court has also held that jury trials are not constitutionally required in juvenile proceedings.[483]
On a few occasions, the Court has considered whether juveniles must be afforded the rights guaranteed to adults during investigation of crimes. In one such case, the Court ruled that a juvenile undergoing custodial interrogation by police had not invoked a Miranda right to remain silent by requesting permission to consult with his probation officer, since a probation officer could not be equated with an attorney, but also indicated that a juvenile's waiver of Miranda rights was to be evaluated under the same totality-of-the-circumstances approach applicable to adults. That approach requires "inquiry into all the circumstances surrounding the interrogation . . . includ[ing] evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him."[484] In another case, the Court ruled that, although the Fourth Amendment applies to searches of students by public school authorities, neither the warrant requirement nor the probable cause standard is appropriate.[485] Instead, a simple reasonableness standard governs searches of students' persons and effects by school authorities.[486]
In Schall v. Martin, the Court ruled that preventive detention of juveniles does not offend due process when it serves the legitimate state purpose of protecting society and the juvenile from potential consequences of pretrial crime, the terms of confinement serve those legitimate purposes and are nonpunitive, and applicable procedures provide sufficient protection against erroneous and unnecessary detentions.[487] The Court found that a statute authorizing pretrial detention of accused juvenile delinquents upon a finding of "serious risk" that the juvenile would commit crimes prior to trial, providing for expedited hearings, and guaranteeing a formal, adversarial probable cause hearing satisfied those requirements.
Criminal Cases Post-Trial[edit | edit source]
Overview of Criminal Cases and Post-Trial Due Process[edit | edit source]
The Supreme Court has struck down criminal sentences on due process grounds when the sentencing judge relied on inaccurate information[488] or the sentencing jurors considering invalid factors.[489] Aside from those circumstances, procedural due process imposes few limits on criminal sentencing.[490] In Williams v. New York, the Court upheld the imposition of the death penalty, despite a jury's recommendation of mercy, where the judge acted based on information in a presentence report not shown to the defendant or his counsel.[491] The Court opined that it was undesirable to restrict judicial discretion in sentencing by requiring adherence to rules of evidence that would exclude highly relevant and informative material. Further, disclosure of such information to the defense could dry up sources who feared retribution or embarrassment. Thus, hearsay and rumors can be considered in sentencing. In Gardner v. Florida, however, the Court limited the application of Williams to capital cases.[492]
In United States v. Grayson, a noncapital case, the Court relied heavily on Williams in holding that a sentencing judge may properly consider his belief that the defendant was untruthful in his trial testimony in deciding to impose a more severe sentence than he would otherwise have imposed.[493] The Court declared that the judge must be free to consider the broadest range of information in assessing the defendant's prospects for rehabilitation, and the defendant's truthfulness, as assessed by the trial judge from his own observations, is relevant information.[494]
There are some sentencing proceedings, however, that so implicate substantial rights that additional procedural protections are required.[495] In Specht v. Patterson, a defendant had been convicted of taking indecent liberties, which carried a maximum sentence of ten years, but was sentenced under a sex offender statute to an indefinite term of one day to life.[496] The sex offender law, the Court observed, did not make the commission of the particular offense the basis for sentencing. Instead, by triggering a new hearing to determine whether the convicted person was a public threat, a habitual offender, or mentally ill, the law in effect constituted a new charge that must be accompanied by procedural safeguards. In Mempa v. Rhay, the Court held that, when sentencing is deferred subject to probation and the convicted defendant is later returned for sentencing following an alleged probation violation, the sentencing is a point in the process where substantial rights of the defendant may be affected, so the defendant must be represented by counsel.[497]
A state may also violate due process if it attempts to withhold relevant information from the sentencing jury. For instance, in Simmons v. South Carolina, the Court held that due process requires that if prosecutor makes an argument for the death penalty based on the future dangerousness of the defendant to society, the jury must then be informed if the only alternative to a death sentence is a life sentence without possibility of parole.[498] But, in Ramdass v. Angelone, the Court refused to apply the reasoning of Simmons because the defendant was not technically parole ineligible at time of sentencing.[499]
Due process prohibits penalizing a defendant for exercising a right to appeal. Thus, it is a denial of due process for a judge to sentence a convicted defendant on retrial to a longer sentence than he received after the first trial, if the object of the sentence is to punish the defendant for having successfully appealed his first conviction or to discourage similar appeals by others.[500] If the judge imposes a longer sentence the second time, he must justify it on the record by showing, for example, the existence of new information meriting a longer sentence.[501] By contrast, the Court has declined to apply the requirement of justifying a more severe sentence upon resentencing to jury sentencing, at least in the absence of a showing that the jury knew of the prior vacated sentence, reasoning that the possibility of vindictiveness in jury resentencing is de minimis.[502] The presumption of vindictiveness is also inapplicable if the first sentence was imposed following a guilty plea, as a trial may afford the court insights into the nature of the crime and the character of the defendant that were not available following the initial guilty plea.[503]
Criminal Appeals and Procedural Due Process[edit | edit source]
Procedural due process does not require states to allow appeals from criminal convictions, but does impose some requirements on appeals if a state chooses to authorize them. In an 1894 case, the Supreme Court opined,
An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the State to allow or not to allow such a review.McKane v. Durston, 153 U.S. 684, 687 (1894) See also Andrews v. Swartz, 156 U.S. 272 (1895); Murphy v. Massachusetts, 177 U.S. 155, 158 (1900); Reetz v. Michigan, 188 U.S. 505, 508 (1903).
The Court has since reaffirmed that holding.[504] However, it has also held that, when a state does provide appellate review, it may not so condition the privilege as to deny it irrationally to some persons, such as indigents.[505]
While states may decline to allow traditional criminal appeals, they are not free to have no corrective process in which defendants may pursue remedies for federal constitutional violations. In Frank v. Mangum, the Court held that a conviction obtained in a mob-dominated trial violated due process: "if the State, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the State deprives the accused of his life or liberty without due process of law."[506] The Court has stated numerous times that the Fourteenth Amendment requires some form of corrective process when a convicted defendant alleges a federal constitutional violation.[507] To burden that process, such as by limiting the right to petition for a writ of habeas corpus, violates the defendant's constitutional rights.[508]
The government has discretion to determine the means by which defendants can vindicate federal constitutional rights after conviction. The Court has explained that "[w]ide discretion must be left to the States" in this area:
A State may decide whether to have direct appeals in such cases, and if so under what circumstances. . . . A State may provide that the protection of rights granted by the Federal Constitution be sought through the writ of habeas corpus or coram nobis . . . or it may afford remedy by a simple motion brought either in the court of original conviction or at the place of detention. . . . So long as the rights under the United States Constitution may be pursued, it is for a State and not for this Court to define the mode by which they may be vindicated.Carter v. Illinois, 329 U.S. 173, 175-76 (1946).
If a state provides a mode of redress, a defendant must first exhaust that remedy. If he is unsuccessful, or if a state does not provide an adequate mode of redress, then the defendant may petition a federal court for relief through a writ of habeas corpus.[509]
When a state provides appellate or other corrective process, that process is subject to scrutiny for alleged unconstitutional deprivations of life or liberty like any other part of a criminal case. At first, the Court appeared to assume that, when a state appellate process formally appeared to be sufficient to correct constitutional errors committed by the trial court, the affirmance of a trial court's sentence of execution was ample assurance that life would not be forfeited without due process of law.[510] But, in Moore v. Dempsey, the Court directed a federal district court considering a petition for a writ of habeas corpus to make an independent investigation of the facts alleged by the petitioners, notwithstanding that the state appellate court had ruled against the legal sufficiency of the same allegations.[511] In Moore and a subsequent case, Brown v. Mississippi,[512] the Court declined to defer to decisions of state appellate tribunals holding that proceedings in a trial court were fair.
In a 2009 case, the Court held that the Due Process Clause does not provide convicted persons a right to post-conviction access to the state's evidence for DNA testing.[513] Chief Justice John Roberts, in a 5-4 decision, noted that forty-six states had enacted statutes dealing specifically with access to DNA evidence, and that the Federal Government had enacted a statute allowing federal prisoners to move for court-ordered DNA testing under specified conditions. Even the states that had not enacted statutes dealing specifically with access to DNA evidence must, under the Due Process Clause, provide adequate post-conviction relief procedures. The Court, therefore, saw "no reason to constitutionalize the issue."[514]
Probation, Parole, and Procedural Due Process[edit | edit source]
Sometimes convicted defendants are not sentenced to imprisonment, but instead are placed on probation subject to incarceration if they violate the conditions that are imposed; others who are incarcerated may qualify for release on parole before completing their sentence, subject to reincarceration if they violate imposed conditions. The Court has deemed both parole and probation to be statutory privileges granted by the government, and thus early cases assumed that the government did not have to provide procedural due process in granting or revoking either.[515] Under modern doctrine, however, both granting and revocation of parole and probation are subject to due process analysis.
In Morrissey v. Brewer, a unanimous Court held that parole revocations must comply with due process hearing and notice requirements.[516] The Court explained,
[T]he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocation . . . [But] the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a "grievous loss" on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a "right" or a "privilege." By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.408 U.S. at 480, 482.
The Court held that what process is due depended on the state's interests. The state's principal interest was that, having once convicted a defendant, imprisoned him, and, at some risk, released him for rehabilitation purposes, it should be "able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole. Yet, the state has no interest in revoking parole without some informal procedural guarantees," inasmuch as such guarantees will not interfere with its reasonable interests.[517]
The Morrissey Court held that minimal due process dictates that at both stages of the parole revocation process--the arrest of the parolee and the formal revocation--the parolee is entitled to certain rights. Promptly following arrest of the parolee, there should be an informal hearing to determine whether reasonable grounds exist for revocation of parole.[518] The parolee should be given adequate notice that the hearing will take place and what violations are alleged; the parolee should be able to appear and speak on his or her own behalf and produce other evidence and should be allowed to examine those who have given adverse evidence against him or her unless it is determined that the identity of such informant should not be revealed. In addition, the hearing officer should prepare a digest of the hearing and base his or her decision upon the evidence adduced at the hearing.[519]
Prior to the final decision on revocation, there should be a more formal revocation hearing involving a final evaluation of any contested relevant facts and consideration whether the facts as determined warrant revocation. The hearing must take place within a reasonable time after the parolee is taken into custody, and he or she must be enabled to controvert the allegations or offer evidence in mitigation. The procedural details of such hearings are for the states to develop, but the Court specified minimum requirements of due process, including
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.408 U.S. at 489.
Ordinarily, the written statement need not indicate that the sentencing court or review board considered alternatives to incarceration,[520] but a sentencing court must consider such alternatives if the probation violation consists of the failure of an indigent probationer, through no fault of his own, to pay a fine or restitution.[521]
The Court has applied a flexible due process standard to the provision of counsel in parole or probation revocation proceedings. The Court has not always required provision of counsel in such proceedings. However, it has held that the state should provide the assistance of counsel where an indigent person may have difficulty in presenting his or her version of disputed facts without cross-examination of witnesses or presentation of complicated documentary evidence. Presumptively, counsel should be provided where the person requests counsel and makes a timely and colorable claim that he or she has not committed the alleged violation, or if there are reasons in justification or mitigation that might make revocation inappropriate.[522] In Mempa v. Rhay, the Court held that a criminal defendant was entitled to counsel at a deferred sentencing hearing conducted after he violated the conditions of his probation.[523]
The Court analyzed of the Due Process Clause's requirements with respect to granting parole in Greenholtz v. Nebraska Penal Inmates.[524] The Court rejected the theory that the mere possibility of parole was sufficient to create a liberty interest entitling any prisoner meeting the general standards of eligibility to be dealt with in any particular way. On the other hand, the Court recognized that a parole statute could create an expectancy of release entitled to some measure of constitutional protection, although a determination would need to be made on a case-by-case basis,[525] and the full panoply of due process guarantees is not required.[526] However, when state statutes and regulations impose no obligation on the pardoning authority and thus create no legitimate expectancy of release, the prisoner may not demonstrate such a legitimate expectancy by showing that others have been granted release. The power of the executive to pardon or grant clemency is a matter of grace and is rarely subject to judicial review.[527]
Prisoners and Procedural Due Process[edit | edit source]
In an 1871 case, the Supreme Court embraced a narrow view of prisoners' due process rights, stating that a prisoner "has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the state."[528] However, that view is not currently the law.[529] In 1948, the Court declared that "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights," suggesting that some rights and privileges may remain.[530] Subsequent cases make clear that the Due Process and Equal Protection Clauses apply to prisoners to some extent.[531]
The Court described its role in protecting the constitutional rights of prisoners in a 1972 case:
Federal courts sit not to supervise prisons but to enforce the constitutional rights of all 'persons,' which include prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the government for redress of grievances.Cruz v. Beto, 405 U.S. 319, 321 (1972). See also Procunier v. Martinez, 416 U.S. 396, 404-05 (1974) (invalidating state prison mail censorship regulations).
While the Court has affirmed that federal courts have the responsibility to scrutinize prison practices alleged to violate the Constitution, concerns of federalism and judicial restraint have caused the Court to emphasize the necessity of deference to the judgments of prison officials and others responsible for administering such systems.[532]
Aside from challenges to conditions of confinement of pretrial detainees,[533] the Court has normally analyzed constitutional challenges to general prison conditions under the Cruel and Unusual Punishments Clause of the Eighth Amendment,[534] while challenges to particular incidents and practices proceed under the Due Process Clause[535] or other provisions such as the First Amendment's speech and religion clauses.[536] Prior to formulating its current approach, the Court recognized several rights of prisoners. The Court has held that prisoners have the right to petition for redress of grievances, which includes access to the courts for purposes of presenting their complaints,[537] and to bring actions in federal courts to recover for damages wrongfully caused by prison administrators.[538] They also have a right, circumscribed by legitimate prison administration considerations, to fair and regular treatment during their incarceration. Prisoners have a right to be free of racial segregation in prisons, except for the necessities of prison security and discipline.[539]
In Turner v. Safley, the Court announced a general standard for measuring prisoners' claims of deprivation of constitutional rights: "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests."[540] The Court indicated that several considerations are appropriate in determining the reasonableness of a prison regulation. First, there must be a rational relation to a legitimate, content-neutral objective, such as prison security. Availability of other avenues for exercise of an inmate's right supports a finding of reasonableness.[541] A regulation is also more likely to be deemed reasonable if accommodation would have a negative effect on the liberty or safety of guards, other inmates,[542] or visitors.[543] On the other hand, "if an inmate claimant can point to an alternative that fully accommodated the prisoner's rights at de minimis cost to valid penological interests," it suggests the regulation is unreasonable.[544]
The Court has held that Fourth Amendment protection is incompatible with "the concept of incarceration and the needs and objectives of penal institutions"; hence, a prisoner has no reasonable expectation of privacy in his or her prison cell protecting him from "shakedown" searches designed to root out weapons, drugs, and other contraband.[545] The Court has not totally blocked redress "for calculated harassment unrelated to prison needs," as inmates may still seek protection under the Eighth Amendment or state tort law.[546] Existence of "a meaningful postdeprivation remedy" for unauthorized, intentional deprivation of an inmate's property by prison personnel protects the inmate's due process rights.[547] The Court has held that negligent deprivation of life, liberty, or property by prison officials does not implicate due process at all.[548]
A change to a prisoner's housing conditions, including one imposed as a matter of discipline, may implicate a protected liberty interest if such a change imposes an "atypical and significant hardship" on the inmate.[549] In Wolff v. McDonnell, the Court articulated due process standards to govern prisoner discipline.[550] The Court held that due process applies but, because prison disciplinary proceedings are not part of a criminal prosecution, the full panoply of defendant rights is not available. Rather, the analysis must proceed by identifying the interest in "liberty" that the Due Process Clause protects. Thus, where the state provides good-time credit or other privileges and further provides for forfeiture of these privileges only for serious misconduct, the interest of the prisoner in this degree of liberty entitles him to the minimum procedures appropriate under the circumstances.[551] What the minimum procedures consist of is to be determined by balancing the prisoner's interest against the valid interest of the prison in maintaining security and order in the institution, in protecting guards and prisoners against retaliation by other prisoners, and in reducing prison tensions.
The Court in Wolff held that a prison must afford the subject of a disciplinary proceeding "advance written notice of the claimed violation and a written statement of the factfindings as to the evidence relied upon and the reasons for the action taken."[552] In addition, "an inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals."[553] Confrontation and cross-examination of adverse witnesses is not required inasmuch as these would threaten valid institutional interests. Ordinarily, an inmate has no right to representation by retained or appointed counsel. Finally, only a limited right to an impartial tribunal was recognized, with the Court ruling that imposing limitations on the discretion of a committee of prison officials sufficed for this purpose.[554] Revocation of good time credits, the Court later ruled, must be supported by "some evidence in the record," but an amount that "might be characterized as meager" is constitutionally sufficient.[555]
Determination of whether due process requires a hearing before a prisoner is transferred from one institution to another requires analysis of the applicable statutes and regulations as well as consideration of the particular harm suffered by the transferee. In one case, the Court found that no hearing needed to be held prior to transferring a prisoner from one prison to another prison in which the conditions were substantially less favorable. Because the state had not conferred any right to remain in the facility to which the prisoner was first assigned, prison officials had unfettered discretion to transfer any prisoner for any reason or for no reason at all.[556] The same principles govern interstate prison transfers.[557]
By contrast, transfer of a prisoner to a high security facility, with an attendant loss of the right to parole, gave rise to a liberty interest, although the due process requirements to protect this interest are limited.[558] The Court has also held that transfer of a prisoner to a mental hospital pursuant to a statute authorizing transfer if the inmate suffers from a "mental disease or defect" must be preceded by a hearing. The Court first noted that the statute in that case gave the inmate a liberty interest, because it presumed that he would not be moved absent a finding that he was suffering from a mental disease or defect. Second, unlike transfers from one prison to another, transfer to a mental institution was not within the range of confinement covered by the prisoner's sentence, and, moreover, imposed a stigma constituting a deprivation of a liberty interest.[559]
Another case, Washington v. Harper, concerned the kind of hearing that is required before a state may force a mentally ill prisoner to take antipsychotic drugs against his will.[560] The Court held that a judicial hearing was not required. Instead, the inmate's substantive liberty interest (derived from the Due Process Clause as well as from state law) was adequately protected by an administrative hearing before independent medical professionals, at which the inmate had the right to a lay advisor but not an attorney.
State Taxes[edit | edit source]
State Taxes and Due Process Generally[edit | edit source]
The Due Process Clause imposes some limits on states' assessment and collection of taxes, which vary based on the type of tax at issue. With respect to imposition of special taxes (taxes collected from property owners to fund local government plans such as infrastructure projects), the Court has held that "notice to the owner at some stage of the proceedings, as well as an opportunity to defend, is essential."[561] By contrast, it has ruled that laws for assessment and collection of general taxes stand upon a different footing and are to be "construed with the utmost liberality," and that no notice is necessary.[562]
As applied to taxation, due process does not require judicial process.[563] Nor does due process in tax proceedings require the same kind of notice as is required in a suit at law or in proceedings for taking private property under the power of eminent domain.[564] Due process is satisfied if a taxpayer is given an opportunity to test the validity of a tax at any time before it is final, whether before a board having a quasi-judicial character, or before a tribunal provided by the state for such purpose.[565]
When no other remedy is available, a judgment of a state court withholding a decree in equity to enjoin collection of a discriminatory tax violates due process.[566] The Court has also found due process violations in a statute that limited a taxpayer's right to challenge an assessment to cases of fraud or corruption,[567] and when a state tribunal prevented the recovery of unlawful taxes under a state law that allowed suits to recover taxes alleged to have been assessed illegally only if the taxes had been paid at the time and in the manner provided.[568] In a case involving a tax held unconstitutional as a discrimination against interstate commerce and not invalidated in its entirety, Court held that the state had several alternatives for equalizing incidence of the tax: it could pay a refund equal to the difference between the tax paid and the tax that would have been due under rates afforded to in-state competitors, assess and collect back taxes from those competitors, or combine the two approaches.[569]
Under the doctrine of laches, persons who fail to exercise an opportunity to object and be heard cannot thereafter complain that a tax assessment is arbitrary and unconstitutional.[570] Likewise, a company that failed to report its gross receipts, as required by statute, had no further right to contest the state comptroller's estimate of those receipts and his adding to his estimate the 10% penalty permitted by law.[571]
Due process and state taxation issues include due process requirements for the assessment,[572] notice,[573] and collection[574] of state taxes.
Assessment of State Taxes and Due Process[edit | edit source]
In the 1884 case Hagar v. Reclamation District No, 108, the Court distinguished between the due process requirements for fixed taxes and taxes assessed based on the value of specific property.[575] The Hagar Court noted that "there is a vast number [of taxes] of which, from their nature, no notice can be given to the tax-payer, nor would notice be of any possible advantage to him, such as poll taxes, license taxes (not dependent upon the extent of his business), and generally, specific taxes on things, or persons, or occupations."[576] With respect to these taxes, where "there is nothing the owner can do which can affect the amount to be collected from him," the Court held that no notice or hearing was required. By contrast, "where a tax is levied on property not specifically, but according to its value, to be ascertained by assessors appointed for that purpose upon such evidence as they may obtain, a different principle comes in. The officers in estimating the value act judicially."[577] The Court noted that most states provided procedures "for the correction of errors" in such assessments, and concluded, "The law in prescribing the time when such complaints will be heard, gives all the notice required, and the proceedings by which the valuation is determined, though it may be followed, if the tax be not paid, by a sale of the delinquent's property, is due process of law."[578]
The Court has never considered it necessary that a taxpayer shall have been present, or had an opportunity to be present, in a tribunal when liability was assessed.[579] Nor is there any constitutional command that notice of an assessment and an opportunity to contest it be given in advance of the assessment. It is enough that all available defenses may be presented to a competent tribunal during a suit to collect the tax and before the demand of the state for remittance becomes final.[580]
However, when a political subdivision, taxing board, or court makes assessments based on enjoyment of a special benefit, the property owner is entitled to a hearing on the amount of the assessment and its determination.[581] The hearing need not amount to a judicial inquiry,[582] but a mere opportunity to submit objections in writing, without the right of personal appearance, is not sufficient.[583] Generally, if an assessment for a local improvement is made in accordance with a fixed rule prescribed by legislative act, property owners are not entitled to be heard in advance on the extent to which the improvement benefits their property.[584] On the other hand, if the area of the assessment district was not determined by the legislature, a landowner has the right to be heard respecting benefits to his or her property before it can be included in the improvement district and assessed; but, in the absence of actual fraud or bad faith, due process is not denied if the decision of the agency vested with the initial determination of benefits is made final.[585] The owner has no constitutional right to be heard in opposition to the launching of a project that may result in an assessment, and once his or her land has been duly included within a benefit district, the only privilege the owner thereafter enjoys is a hearing upon the apportionment--that is, the amount of the tax he or she has to pay.[586] Where the mode of assessment for a tax resolves itself into a mere mathematical calculation, there is no necessity for a hearing.[587]
Notice of State Taxes and Due Process[edit | edit source]
Notice of tax assessments or liabilities, insofar as it is required, may be either personal, by publication, by statute fixing the time and place of hearing,[588] or by delivery to a statutorily designated agent.[589] With regard to land, when a state intends to sell land "for taxes upon proceedings to enforce a lien for the payment thereof, it may proceed directly against the land within the jurisdiction of the court," and may provide due process through "a notice which permits all interested, who are 'so minded,' to ascertain that it is to be subjected to sale to answer for taxes, and to appear and be heard, whether to be found within the jurisdiction or not."[590] Compliance with statutory notice requirements combined with actual notice to owners of land can be sufficient in an in rem case, even if there are technical defects in the notice.[591]
Whether statutorily required notice is sufficient may vary depending on the circumstances. Thus, where a taxpayer was not legally competent, no guardian had been appointed, and town officials were aware of these facts, notice of a foreclosure was defective, even though the tax delinquency was mailed to her, published in local papers, and posted in the town post office.[592] On the other hand, due process was not denied to persons who were unable to avert foreclosure on certain trust lands because their own bookkeeper failed to inform them of the receipt of mailed notices.[593]
Collection of State Taxes and Due Process[edit | edit source]
States may employ a variety of methods to collect taxes. For instance, collection of an inheritance tax may be expedited by a statute requiring safe deposit boxes to be sealed for at least ten days after a renter's death and obliging the lessor to retain assets found therein sufficient to pay the tax that may be due the state.[594] A state may compel retailers to collect gasoline taxes from consumers and, under penalty of a fine for delinquency, to remit monthly the amounts thus collected.[595] In collecting personal income taxes, most states require employers to deduct and withhold the tax from employees' wages.[596]
States may also use various procedures to collect taxes from prior tax years. To reach property that has escaped taxation, a state may tax estates of decedents for a period prior to death and grant proportionate deductions for all prior taxes that the personal representative can prove to have been paid.[597] In addition, the Court found no violation of property rights when a state asserts a prior lien against trucks repossessed by a vendor from a carrier (1) accruing from the operation by the carrier of trucks not sold by the vendors, either before or during the time the carrier operated the vendors' trucks, or (2) arising from assessments against the carrier, after the trucks were repossessed, but based upon the carrier's operations preceding such repossession. Such lien need not be limited to trucks owned by the carrier because the wear on the highways occasioned by the carrier's operation is in no way altered by the vendor's retention of title.[598]
A state may provide in advance that taxes will accrue interest from the time they become due, and may with equal validity stipulate that taxes that have become delinquent will bear interest from the time the delinquency commenced. A state may also adopt new remedies for the collection of taxes and apply these remedies to taxes already delinquent.[599] After a taxpayer's liability has been fixed by appropriate procedure, collection of a tax by distress and seizure of his person does not deprive him of liberty without due process of law.[600] Nor is a foreign insurance company denied due process of law when its personal property is distrained to satisfy unpaid taxes.[601]
The requirements of due process are fulfilled by a statute which, in conjunction with affording an opportunity to be heard, provides for the forfeiture of titles to land for failure to list and pay taxes thereon for certain specified years.[602] No less constitutional, as a means of facilitating collection, is an in rem proceeding, to which the land alone is made a party, whereby tax liens on land are foreclosed and all preexisting rights or liens are eliminated by a sale under a decree.[603] On the other hand, although the conversion of an unpaid special assessment into both a personal judgment against the owner as well as a charge on the land is consistent with the Fourteenth Amendment,[604] a judgment imposing personal liability against a nonresident taxpayer over whom the state court acquired no jurisdiction is void.[605]
Other Contexts[edit | edit source]
Parental and Children's Rights and Due Process[edit | edit source]
The Supreme Court has applied the Due Process Clause to require certain procedural protections in cases involving parental rights. In a case arising from a state proceeding to terminate the parental rights of an indigent without providing her counsel, the Court recognized the parent's interest as "an extremely important one."[606] However, the Court also noted the state's strong interest in protecting the welfare of children. Thus, as the interest in correct fact-finding was strong on both sides, the proceeding was relatively simple, no features were present raising a risk of criminal liability, no expert witnesses were present, and no "specially troublesome" substantive or procedural issues had been raised, the litigant did not have a right to appointed counsel.[607] In other due process cases involving parental rights, the Court has held that due process requires special state attention to parental rights.[608]
Protective Commitment and Due Process[edit | edit source]
Like juvenile offenders,[609] several other classes of persons may be subject to confinement by court processes deemed civil rather than criminal. This category of "protective commitment" includes involuntary commitments for treatment of mental illness or mental disability, alcoholism, narcotics addiction, or sexual psychopathy. In O'Connor v. Donaldson, the Court held that "a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends."[610] The Court declined to resolve questions including "when, or by what procedures, a mentally ill person may be confined by the State on any of the grounds which, under contemporary statutes, are generally advanced to justify involuntary confinement of such a person--to prevent injury to the public, to ensure his own survival or safety, or to alleviate or cure his illness"[611] and the confined person's right, if any, to receive treatment for the illness. In another case, the Court held that, to conform to due process requirements, procedures for voluntary admission should recognize the possibility that persons in need of treatment may not be competent to give informed consent; this is not a situation where availability of a meaningful post-deprivation remedy can cure the due process violation.[612]
Procedurally, an individual's liberty interest in being free from unjustifiable confinement and from the adverse social consequences of being labeled mentally ill requires the government to assume a greater share of the risk of error in proving the existence of such illness as a precondition to confinement. Thus, the standard of a "preponderance of the evidence," normally used in litigation between private parties, is constitutionally inadequate in commitment proceedings. On the other hand, the criminal standard of "beyond a reasonable doubt" is not necessary because the state's aim is not punitive and because some or even much of the consequence of an erroneous decision not to commit may fall upon the individual. Moreover, the criminal standard addresses an essentially factual question, whereas interpretative and predictive determinations must also be made in reaching a conclusion on commitment. The Court therefore imposed a standard of "clear and convincing" evidence.[613]
In Parham v. J.R., the Court considered due process requirements in the context of commitment of children to an institution for treatment of mental illness by their parents or by the state, when such children are wards of the state.[614] Under the challenged laws, there were no formal preadmission hearings, but psychiatric and social workers interviewed parents and children and reached some form of independent determination that commitment was called for. The Court acknowledged the potential for abuse but balanced it against factors including the responsibility of parents for the care and nurture of their children and the legal presumption that parents usually act in behalf of their children's welfare, the independent role of medical professionals in deciding to accept the children for admission, and the real possibility that the institution of an adversary proceeding would both deter parents from acting in good faith to institutionalize children needing care and interfere with the ability of parents to assist with the care of institutionalized children.[615] The same concerns, reflected in the statutory obligation of the state to care for children in its custody, caused the Court to apply the same standards to involuntary commitment by the government.[616]
Substantive Due Process[edit | edit source]
Overview of Substantive Due Process[edit | edit source]
The Supreme Court has interpreted the Fifth and Fourteenth Amendments' Due Process Clause--which prohibits the government from depriving "any person of life, liberty, or property without due process of law"--to protect certain fundamental constitutional rights from government interference, regardless of the procedures that the government follows when enforcing the law. These protected rights, though not listed in the Constitution, are deemed so fundamental that courts must subject government actions infringing on them to closer scrutiny. The Fourteenth Amendment, in particular, adopted as one of the Reconstruction Amendments after the Civil War, protects individuals from interference by state actions.[617]
Although the Court, in the immediate years following the Fourteenth Amendment's ratification, declined to interpret the Due Process Clause as placing a substantive constraint on state actions, it went on to apply to robust notion of substantive due process to economic legislation prior to the Great Depression Era. During this period, the Court, recognizing "liberty of contract" as an interest protected by the Due Process Clause, struck down a variety of economic regulations as unconstitutional. The Court, however, ultimately retreated from the doctrine of economic substantive due process as the laissez-faire approach to economic regulation receded with the Great Depression.[618]
In contrast to the Court's shift away from economic substantive due process, the Court continued to develop the doctrine of noneconomic due process during the twentieth century, invalidating several governmental actions as impermissibly infringing upon certain fundamental rights, including the right to use contraceptives, to marry, and to engage in certain adult consensual intimate conduct. Since the 1980s, however, the Court--with the exception of two cases involving the right of same-sex couples--has generally declined to invalidate government actions on substantive due process grounds. In 2022, the Court further signaled a potential retreat from noneconomic substantive due process when it reversed the position it had held for nearly five decades to hold that the right to abortion is not a constitutionally protected fundamental right.[619]
Economic[edit | edit source]
Overview of Economic Substantive Due Process[edit | edit source]
For approximately the first third of the twentieth century, the Supreme Court applied a doctrine known as economic substantive due process, which recognized "liberty of contract" as an interest protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, to strike down a variety of economic regulations unconstitutional.[620] In the years immediately following the adoption of the the Fourteenth Amendment in the late nineteeth century, however, there was little indication of the Due Process Clause's potential to serve as a substantive restraint on state action.[621] Long before the Fourteenth Amendment's passage, the Court had recognized the Due Process Clause of the Fifth Amendment as a restraint upon the federal government, but only in the narrow sense that a legislature needed to provide procedural "due process" when enforcing law.[622]
Early invocations of a "substantive" economic due process right were unsuccessful. In the Slaughter-House Cases,[623] a group of butchers challenged a Louisiana statute conferring the exclusive privilege of butchering cattle in New Orleans to one corporation. In reviewing the validity of this monopoly, the Court noted that the prohibition against a deprivation of property without due process "has been in the Constitution since the adoption of the Fifth Amendment, as a restraint upon the Federal power."[624] Nearly all state constitutions, the Court observed, also included a similar restraint on state power.[625] In upholding the state law, the Court stated that "under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision."[626]
Four years later, in Munn v. Illinois,[627] the Court reviewed the constitutionality of a state law that regulated the maximum rates private companies can charge for transporting and warehousing grain, and again refused to interpret the Due Process Clause as invalidating substantive state legislation. Rejecting contentions that such legislation effected an unconstitutional deprivation of property by preventing the owner from earning a reasonable compensation for its services and by transferring an interest in a private enterprise to the public, Chief Justice Morrison Waite took a broad view of the state's police power and concluded that states may regulate the use of private property "when such regulation becomes necessary for the common good."[628] While Chief Justice Waite acknowledged that state legislatures may abuse rate regulation, he emphasized that such possibility is "no argument against its existence," for the people "must resort to the polls, not to the courts" for protection against abuses by legislatures.[629]
A year later, in Davidson v. New Orleans,[630] the Court similarly upheld a special assessment on certain real estate properties for drainage purposes. Writing for the Court, Justice Samuel Miller counseled against departing from the then-conventional applications of due process but acknowledged the difficulty of arriving at a precise, all-inclusive definition of the clause. "It is not a little remarkable," he observed, "that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the Federal government, for nearly a century, . . . this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion."[631] But only a few years after due process became part of the Constitution as a restraint upon the states through the ratification of the Fourteenth Amendment, he noted, "the docket of this court is crowded with cases in which we are asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property without due process of law."[632] Justice Miller opined that "no more useful construction could be furnished by this or any other court" than to define "what it is for a State to deprive a person of life, liberty, or property without due process of law."[633] But such construction, he continued, should be fleshed out "by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded."[634]
Just six years later, however, in Hurtado v. California,[635] the Court indicated it was modifying its views. Justice Stanley Mathews, speaking for the Court, noted that due process under the United States Constitution differed from due process in British common law in that the latter applied only to executive and judicial acts, whereas the former also applied to legislative acts. Consequently, the limits of due process under the Fourteenth Amendment could not be appraised solely in terms of the "sanction of settled usage" under common law.[636] The Court then declared that "[a]rbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law" and that the constitutional limits placed on the action of both state and federal governments "are essential to the preservation of public and private rights."[637] "The enforcement of these limitations by judicial process," Justice Mathews continued, "is the device of self-governing communities to protect the rights of individuals and minorities."[638] By this language, the states were put on notice that all types of state legislation, whether dealing with procedural or substantive rights, were now subject to the scrutiny of the Court when questions of essential justice were raised.
As the Court expanded the scope of the Due Process Clause over the next twenty years, two strands of reasoning developed to support this expansion. The first was a view advanced by Justice Johnson Field in a dissent in Munn v. Illinois.[639] According to Justice Field, the state police power is limited to preventing injury to the "peace, good order, morals, and health of the community."[640] The second strand, which Justice Joseph Bradley espoused in his dissent in the Slaughter-House Cases,[641] tentatively transformed ideas embodying the social compact and natural rights into constitutionally enforceable limitations upon government.[642] Under this view, not only were states limited to exercising their police powers to further only those purposes of health, morals, and safety that the Court had enumerated, but states could also only employ means that do not unreasonably interfere with fundamental natural rights of liberty and property.[643] As articulated by Justice Bradley, these rights were equated with freedom to pursue a lawful calling and to make contracts for that purpose.[644]
As more Justices endorsed Justice Bradley's view,[645] and as the laissez-faire approach to economic regulation became dominant,[646] the Court also began to deviate from presuming a state statute to be valid unless clearly shown to be otherwise, by examining whether facts justified a particular law.[647] In earlier cases such as Munn v. Illinois,[648] the Court had upheld state laws by presuming that facts justifing the legislation "actually did exist when the statute now under consideration was passed." Ten years later, however, in Mugler v. Kansas,[649] the Court upheld a statewide anti-liquor law because the Court was aware of the deleterious social effects caused by excessive use of alcoholic liquors,[650] thereby establishing precedent for the Court to appraise independently the facts inducing legislatures to enact statutes.[651]
Mugler was significant because it implied that, unless the Court found facts justifying a state law, the Court would invalidate the law as an improper exercise of the state's police power because the law lacked a reasonable or adequate relation to promoting public health, morals, or safety.[652] The Court used this approach when challenged legislation involved potential governmental interference in economic relations. In these cases, the Court tended to shift the burden of proof from litigants challenging the legislation to the state seeking enforcement.[653] Thus, the state had to demonstrate that the Constitution authorized, rather than did not expressly prohibit, a statute that interfered with a natural right of liberty or property. Applying this approach from the turn of the century through the mid-1930s, the Court struck down numerous laws that it saw as restricting economic liberties.
During the Great Depression, however, the laissez-faire approach to economic regulation lost favor to New Deal approaches.[654] Thus, in 1934, the Court in Nebbia v. New York[655] discarded its prior approach to evaluating economic legislation. The Court's modern approach is exemplified by its 1955 decision, Williamson v. Lee Optical Co.,[656] which upheld a statutory scheme regulating sales of eyeglasses that favored ophthalmologists and optometrists in private professional practice and disadvantaged opticians and those employed by or using space in business establishments. As the Court stated, "[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought."[657] "For protection against abuses by legislatures," the Court emphasized, "the people must resort to the polls, not to the courts."[658]
Liberty of Contract and Lochner v. New York[edit | edit source]
The doctrine of economic substantive due process is grounded in the concept that "liberty of contract" is a right protected by the Due Process Clause. This idea, originally advanced by Justices Joseph Bradley and Stephen Field in dissent in the Slaughter-House Cases,[659] later became accepted doctrine in Allgeyer v. Louisiana,[660] in which the Court invalidated a state law that prohibited out-of-state insurance corporations from conducting business in the state without maintaining a place of business and authorized agent there. In concluding that the state law violated the Due Process Clause, the Court held that "[t]he liberty mentioned in that [Fourteenth] amendment . . . embrace[s] the right of the citizen to . . . earn his livelihood by any lawful calling[,] to pursue any livelihood or avocation," and to enter all contracts necessary to fulfill those purposes.[661] The Court subsequently applied this doctrine repeatedly through the early part of the twentieth century to strike down both state and federal economic regulations.
The Court, however, upheld some labor regulations and acknowledged that freedom of contract was "a qualified and not an absolute right."[662] Liberty, according to the Court, "implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community." Thus, with respect to labor regulations, the Court reasoned the legislature has a "wide field of discretion" to impose regulations suitable to protect "health and safety" and "designed to insure wholesome conditions of work and freedom from oppression."[663]
Still, the Court was committed to the principle that freedom of contract is the general rule and that legislative efforts to abridge it could be justified only by exceptional circumstances. To serve this end, the Court intermittently shifted the burden of proof in a manner best illustrated by comparing the early cases of Holden v. Hardy[664] and Lochner v. New York.[665] In Holden v. Hardy,[666] the Court considered the constitutionality of a state law that limited the number of work hours for underground miners and smelters. In upholding the state law, the Court presumed the law's validity and allowed the burden of proof to remain with those attacking the law.[667] Recognizing that mining had long been the subject of state regulation due to the associated health and safety risks, the Court registered its willingness to sustain a law that the state legislature had determined to be "necessary for the preservation of health of employees," and for which there were "reasonable grounds for believing that . . . [it was] supported by the facts."[668]
Seven years later, however, a different Court found in Lochner v. New York[669] that a state law restricting employment in bakeries to ten hours per day and sixty hours per week was a labor regulation rather than a true health measure, and thus unconstitutionally interfered with the right of adult laborers to contract for their means of livelihood. Denying that the Court was substituting its own judgment for that of the legislature, Justice Rufus Peckham, writing for the Court, nevertheless maintained that whether the act was within the police power of the state was a question the Court must answer.[670] Notwithstanding the medical evidence proffered--and implicitly shifting the burden of proof onto the state seeking to enforce the law--the Justice questioned whether the proffered statistics adequately demonstrated the trade of a baker to be "an unhealthy one."[671]
In dissent, Justice John Harlan argued that the law was a health regulation, noting the abundance of medical testimony in the record showing that the life expectancy of bakers was below average, that their capacity to resist diseases was low, and that they were peculiarly prone to suffer irritations of the eyes, lungs, and bronchial passages.[672] In his view, the existence of such evidence left the reasonableness of the measure open to discussion and thus within the discretion of the legislature.[673]
A second dissenting opinion, written by Justice Oliver Wendell Holmes, did not reject the basic concept of substantive due process, but rather the Court's categorical presumption against economic regulation based on a particular economic theory.[674] In his view, "a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez-faire."[675] Rather, he continued, "it is made for people of fundamentally differing views."[676] Thus, according to Justice Holmes, "the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion," i.e., a duly enacted state law, unless the law "would infringe fundamental principles as they have been understood by the traditions of our people and our law."[677] As such, in Justice Holmes' view, presuming the validity of state laws--including those that regulate economic regulation--was the better approach.
Following Justice Holmes's dissent, Muller v. Oregon[678] and Bunting v. Oregon[679] upheld state regulations that limited work hours in certain industries. The Court reached these results by concluding that the regulations were supported by evidence despite the shift in the burden of proof.[680] As a result of these decisions, counsel defending the constitutionality of similar legislation developed the practice of submitting voluminous factual briefs, known as "Brandeis Briefs,"[681] replete with medical or other scientific data intended to establish beyond question a substantial relationship between the challenged statute and public health, safety, or morals.[682]
While the Court generally approved regulating work hours as permissible health measures, it rejected minimum wage law as unlawfully interfering with the freedom of contract.[683] Over objections that regulating wages were just as relevant to workers' health and morals as regulating work hours,[684] the Court held that a minimum wage regulation is a "price-fixing" law that bore no reasonable connection to the objectives of health or safety.[685]
During the Great Depression, however, the laissez-faire tenet of self-help was replaced by the belief that a government role is to help those who are unable to help themselves.[686] To sustain such remedial legislation, the Court had to revisit its concepts of liberty under the Due Process Clause. Thus, in West Coast Hotel v. Parrish,[687] the Court expressly overturned its precedents to uphold a Washington minimum wage law, taking into account the "unparalleled demands for relief" resulting from the Great Depression. In so holding, the Court reiterated that freedom of contract is "a qualified and not an absolute right" that may be restricted in furtherance of public interest.[688]
Laws Regulating Working Conditions and Wages[edit | edit source]
Even when the Lochner-era Supreme Court recognized "liberty of contract" as a substantive right protected by the Due Process Clause, the Court still construed the Clause as permitting certain labor regulations, including maximum hours laws applicable to women workers,[689] other workers in specified lines of employment,[690] and those working on public projects.[691] The Court likewise upheld regulation of how wages were to be paid, including the form of payment,[692] its frequency,[693] and how such payment was to be calculated.[694] In addition, the Court upheld a state law that prohibited the employment of persons under 16 years of age in dangerous occupations and required employers to ascertain whether their employees were in fact below that age.[695]
During that era, the Court also recognized the states had the power to regulate mines. Acknowledging that such health and safety regulation was clearly within a state's police power, the Court upheld various mining regulations, including state laws that required the inspection of coal mines (paid for by mine owners),[696] required the employment of licensed mine managers and mine examiners, and imposed liability upon mine owners for failing to furnish a reasonably safe place for workmen.[697] Other similar regulations that the Court sustained included laws requiring that underground passageways meet or exceed a minimum width,[698] that boundary pillars be installed between adjoining coal properties as a protection against flood in case of abandonment,[699] and that wash houses be provided for employees.[700]
Until 1937, however, the Court interpreted economic substantive due process to generally preclude states from regulating how much wages employers were to pay employees.[701] According to the Court, such "price-fixing" laws did not bear a reasonable connection to the states' health and safety objectives and unlawfully interfered with the freedom to contract.[702] In 1937, however, the Court in West Coast Hotel v. Parrish[703] expressly overruled these precedents and allowed states to set minimum wages for employees. This decision reflected a larger shift in the Court's approach to economic regulations as it increasingly deferred to state legislation. As the Court explained in Day-Brite Lighting, Inc. v. Missouri,[704] its decisions since West Coast Hotel "make plain that we do not sit as a super-legislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare." While the legislative power has limits, the Court emphasized that "state legislatures have constitutional authority to experiment with new techniques" and "may within extremely broad limits control practices in the business-labor field, so long as specific constitutional prohibitions are not violated and so long as conflicts with valid and controlling federal laws."[705] Debatable issues of "business, economic, and social affairs," the Court states, are generally subject to legislative decisions.[706]
Noneconomic[edit | edit source]
Overview of Noneconomic Substantive Due Process[edit | edit source]
After the Supreme Court retreated from the doctrine of economic substantive due process, it continued to develop and recognize, in disparate lines of cases, certain noneconomic substantive rights protected by the Due Process Clause. These protected rights are not explicitly listed in the Constitution, but they are deemed so fundamental that the courts must subject any legislation infringing on them to closer scrutiny. This analysis, criticized by some for being based on extra-constitutional precepts of natural law,[707] serves as the basis for some of the most significant constitutional holdings in the modern era. For instance, the application of the Bill of Rights to the states, seemingly uncontroversial today, is based not on constitutional text, but on noneconomic substantive due process and the incorporation of fundamental rights.[708] Other noneconomic due process holdings, however, such as the recognition of the right of a woman to have an abortion and the later reversal of this recognition, are controversial.[709]
A question confronting the Court is how to define the parameters of these abstract rights once they have been established. For instance, after recognizing the constitutional protections afforded to marriage, family, and procreation in Griswold v. Connecticut,[710] the Court extended the protection to apply to unmarried couples.[711] However, in Bowers v. Hardwick,[712] the Court majority rejected a challenge to a Georgia sodomy law despite the fact that it prohibited types of intimate activities engaged in by married as well as unmarried couples.[713] Then, in Lawrence v. Texas,[714] the Supreme Court reversed itself, holding that a Texas statute making it a crime for two persons of the same sex to engage in intimate sexual conduct violates the Due Process Clause.
More broadly, the Court has not clearly articulated whether and how much to rely on history and tradition in defining a protected liberty interest. In Washington v. Glucksberg, the Court, in an effort to guide and restrain a court's determination of the scope of substantive due process rights, held that the concept of liberty protected under the Due Process Clause should first be understood to protect only those rights that are deeply rooted in this Nation's history and tradition.[715] Moreover, the Court in Glucksberg required a careful description of fundamental rights that would be grounded in specific historical practices and traditions that serve as crucial guideposts for responsible decisionmaking.[716] However, the Court, in Obergefell v. Hodges largely departed from Glucksberg's formulation for assessing fundamental rights in holding that the Due Process Clause required states to license and recognize marriages between two people of the same sex.[717] Instead, the Obergefell Court recognized that fundamental rights do not come from ancient sources alone and instead must be viewed in light of evolving social norms and in a comprehensive manner.[718]
For the Obergefell Court, the two-part test relied on in Glucksberg--relying on history as a central guide for constitutional liberty protections and requiring a careful description of the right in question--was inconsistent with the approach taken in cases discussing certain fundamental rights, including the rights to marriage and intimacy, and would result in rights becoming stale, as received practices could serve as their own continued justification and new groups could not invoke rights once denied.[719] In Dobbs v. Jackson Women's Health Organization, however, the Court--in overruling its prior decisions that recognized a constitutionally protected right to abortion--again applied a history-focused analysis.[720]
Similar disagreement over reliance on history and tradition was also evident in Michael H. v. Gerald D., involving the rights of a biological father to establish paternity and associate with a child born to the wife of another man.[721] While recognizing the protection traditionally afforded a father, Justice Antonin Scalia, joined only by Chief Justice William Rehnquist in this part of the plurality decision, rejected the argument that a non-traditional familial connection (i.e. the relationship between a father and the offspring of an adulterous relationship) qualified for constitutional protection.[722] In his view, courts should limit consideration to "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified."[723] Dissenting Justice William Brennan, joined by two others, rejected the emphasis on tradition, and argued instead that the Court should "ask whether the specific parent-child relationship under consideration is close enough to the interests that we already have protected [as] an aspect of 'liberty.'"[724]
Another question for the Court is what standard of review to apply in reviewing infringements on the fundamental rights it has recognized. In Poe v. Ullman, Justice John Marshall Harlan in a dissent advocated for the application of a standard of reasonableness--the same standard he would have applied to test economic legislation.[725] In Griswold, however, the Court seemingly concluded that the relevant privacy right was protected from government intrusions with little or no consideration to the governmental interests that might justify such an intrusion.[726] On the other hand, in the abortion line of cases, the Court, during the period when it recognized a constitutional right to abortion, came to apply a specific "undue burden" standard that balanced the government's interest in potential life with a woman's right to decide to terminate her pregnancy.[727] In Lawrence, the Court struck down the relevant state law after concluding it "further[ed] no legitimate state interest which can justify its intrusion into the personal and private life of the individual."[728] While this language is suggestive of rational basis review, a typically lenient form of review,[729] the Court was noticeably silent on the standard of review it applied. In his dissent, Justice Antonin Scalia commented on this silence, opining that the Court "appl[ied] an unheard-of form of rational-basis review" in invalidating the state law.[730] Consequently, questions remain concerning the applicable standard of review and how it should be applied with respect to specific fundamental rights.
Historical Background on Noneconomic Substantive Due Process[edit | edit source]
One of the earliest formulations of noneconomic substantive due process was the right to privacy. In an 1890 Harvard Law Review article, Samuel Warren and Louis Brandeis first proposed this right as a unifying theme to various common law protections of the "right to be left alone," including the developing laws of nuisance, libel, search and seizure, and copyright.[731] According to the authors,
This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.Id.
The concepts advanced in this article, which appeared to relate as much to private intrusions on persons as to intrusions by government, reappeared years later in a 1928 dissenting opinion by Louis Brandeis, by then a Supreme Court Justice, regarding the Fourth Amendment.[732] In the same decade, during the heyday of economic substantive due process, the Court also ruled in two cases that, although characterized in part as involving the protection of property, foreshadowed the rise of the protection of noneconomic interests.
In Meyer v. Nebraska, the Court struck down a state law that prohibited schools from teaching any language other than English to grade school children.[733] Two years later, in Pierce v. Society of Sisters, the Court declared it unconstitutional to require public school education of children aged eight to sixteen.[734] The Court characterized the rights at issue in each case as certain economic rights.[735] In Meyer, the Court found that the statute at issue interfered in part with the property interest of the plaintiff, a German teacher, in pursuing his occupation.[736] In Pierce, the Court found that the public school requirement threatened the private school plaintiffs with destruction of their businesses and the values of their properties.[737] Yet in both cases the Court also permitted the plaintiffs to represent the interests of parents in the assertion of other noneconomic forms of "liberty" protected by the Due Process Clause. In particular, in Meyer, the Court also recognized "the power of parents to control the education of their own" as a protected liberty interest.[738] Relying on this part of Meyer, the Court in Pierce also held that the public school requirement "unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control."[739]
Although the Supreme Court after Pierce continued to describe noneconomic liberty broadly in dicta,[740] the doctrine had little practical impact in the ensuing decades.[741] In 1965, however, the Court in Griswold v. Connecticut held that a state law banning the use of contraceptives violated the right of marital privacy, but concluded that the right stemmed not from the Due Process Clause, but from the "penumbras" of several amendments of the Bill of Rights.[742] In Roe v. Wade, the Court, while leaving open the possibility this privacy right may be rooted in the Ninth Amendment's reservation of rights to the people, characterized the right as one "founded in the Fourteenth Amendment's concept of personal liberty."[743] From then on, the Court has generally recognized this protected privacy interest as stemming in large part from the Due Process Clause and encompassing, for instance, the right of same-sex couples to engage in adult consensual intimate activities,[744] and for nearly five decades, the right to abortion.[745]
Informational Privacy, Confidentiality, and Substantive Due Process[edit | edit source]
The Supreme Court has at times suggested that the privacy right protected by the Constitution encompasses a right to informational privacy or confidentiality. The Court first indicated the existence of this protected interest in Whalen v. Roe.[746] There, a group of patients and doctors sued to challenge a state law that required the state to record, in a centralized computer file, the names and addresses of all persons who have been prescribed certain drugs with abuse potential.[747] The plaintiffs argued that the law impermissibly invaded two protected privacy interests: (1) the individual interest in avoiding disclosure of personal matters; and (2) the autonomy interest in making certain health decisions about what medication to use.[748]
The Court assumed that both interests are protected, but held that the law on its face did not "pose a sufficiently grievous threat to either interest."[749] The record system, the Court observed, included extensive security protection that limited disclosure to that necessary to achieve the purpose of curtailing misuse of certain prescription drugs, nor did the law interfere with the decision to prescribe or use the relevant drugs.[750] Following Whalen, some lower courts have questioned whether the case established a "fundamental" right to informational privacy or confidentiality.[751]
More than two decades after Whalen, the Court, in NASA v. Nelson, declined to rule on whether such a privacy right exists.[752] In Nelson, a group of NASA workers sued to challenge the extensive background checks required to work at NASA facilities as violating their constitutional privacy rights.[753] Ruling unanimously in favor of the agency, the Court again assumed without deciding that a right to informational privacy could be protected by the Constitution.[754] The Court, however, held that the right does not prevent the government from asking reasonable questions in light of its interest as an employer and in light of the statutory protections that provide meaningful checks against unwarranted disclosures.[755] Consequently, questions remain concerning whether and to what extent a right to informational privacy or confidentiality exists.
Family Autonomy and Substantive Due Process[edit | edit source]
In addition to recognizing a fundamental right to marry,[756] the Supreme Court has also recognized several other family-related fundamental rights related to childrearing and family autonomy. In the early twentieth century, for instance, the Court in Myer v. Nebraska struck down a state law that prohibited schools from teaching any language other than English to grade school children.[757] While recognizing that the state had power to make "reasonable regulations for all schools, including a requirement that they shall give instructions in English," the Court held that the law's prohibition materially interfered with "the power of parents to control the education of their own" in violation of the Due Process Clause.[758] Two years later, in Pierce v. Society of Sisters,[759] the Court struck down an Oregon law that required parents and guardians in the state to send children between the ages of eight and sixteen to public schools.[760] The Court held that the law "unreasonably interefere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control."[761]
Since then, the Supreme Court has considered the rights of parenthood on several occasions, at times touching upon the complex questions raised by possible conflicts between parental rights and children's rights. In Prince v. Massachusetts, for instance, the Court upheld a state law that prohibited minors from selling any periodicals or other articles of merchandise in public places.[762] In so concluding, the Court reasoned that while there is a "private realm of family life which the state cannot enter," the state "has wide range of power for limiting parental freedom and authority in things affecting the child's welfare," including requiring school attendance, regulating child labor, and requiring vaccination as a condition of school entry.[763]
In other instances, however, the Court has reiterated parents' "fundamental liberty interest in the care, custody, and management of their children."[764] In Troxel v. Granville, the Court evaluated a Washington State law that allowed any person to petition a court at any time to obtain visitation rights whenever visitation may serve the best interests of a child.[765] There, a child's grandparents were awarded more visitation with a child against the wishes of the sole surviving parent.[766] A majority of the Court agreed that the statute was invalid, with a plurality of Justices concluding that the law's lack of deference to the parent's wishes infringed upon the parent's fundamental right and contravened the traditional presumption that a fit parent will act in the best interests of a child.[767] In Parham v. J.R., the Court likewise upheld a state's voluntary civil commitment procedures that allowed minors to be committed to state mental hospitals by their parents without an adversarial hearing before an impartial tribunal.[768] Such a hearing, according to the Court, would create an unacceptable intrusion into the parent-child relationship, and would be inconsistent with the traditional presumption of parental competence and good intentions.[769]
In addition to parental rights, the Supreme Court has also indicated that there may be a constitutional right to live together as a family,[770] and that this right may not be limited to the nuclear family.[771] In Moore v. City of East Cleveland, for instance, a plurality of Justices concluded that a local housing ordinance that zoned a neighborhood for single-family occupancy and defined "family" in a way that excluded a grandmother from living with two grandchildren who were cousins, violated the Due Process Clause as an "intrusive regulation of the family" without accruing any tangible state interest.[772] The Court has further suggested that the concept of family may extend beyond biological relationships to the situation of foster families, although the Court acknowledged that such a claim raises complex and novel questions, and that the relevant liberty interests may be limited.[773] On the other hand, the Court has upheld a state law that presumes a child born to a married woman living with her husband to be the husband's child, defeating the right of the child's biological father to establish paternity and visitation rights.[774]
Marriage and Substantive Due Process[edit | edit source]
In several decisions, the Supreme Court recognized the right to marry as a fundamental right protected by the Due Process Clause,[775] such that only "reasonable regulations that do not significantly interfere with the decisions to enter the marital relationship" may be imposed.[776] In striking down a state anti-miscegenation law that criminalized interracial marriage, for instance, the Court in Loving v. Virginia held that the law violated due process by depriving individuals of their "freedom to marry"--"one of the basic civil rights of man, fundamental to our very existence and survival"--based on the "unsupportable basis" of racial classification.[777]
Based on the recognition of this fundamental right, the Court has struck down several state laws that restricted the ability of certain individuals to marry. In Zablocki v. Redhail, for instance, the Court considered a state law that prohibited any resident under an obligation to pay child support from marrying without a court order, which could only be obtained upon a showing that the resident is incompliance with his or her support obligation and that the children were not and were not likely to become public charges.[778] Finding that the law "interfere[d] directly and substantially" with the fundamental right to marry and thus required a "critical examination," the Court held that the restriction was not "closely tailored" to effectuate the relevant state interest of incentivizing compliance with support obligations.[779] In the Court's view, alternative devices to collect payment existed, and the restriction simply prevented marriage without delivering any money to the affected children.[780] Similarly, in Turner v. Safley, the Court concluded that a state regulation impermissibly burdened prison inmates' the right to marry, when it prohibited inmates from marrying unless the prison superintendent has approved the marriage after finding that there were compelling reasons for doing so.[781]
In Obergefell v. Hodges, the Supreme Court further clarified that the "right to marry" applies with "equal force" to same-sex couples, as it does to opposite-sex couples, holding that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.[782] In so holding, the Court recognized marriage as being an institution of "both continuity and change," and, as a consequence, recent shifts in public attitudes respecting gay individuals and more specifically same-sex marriage necessarily informed the Court's conceptualization of the right to marry.[783]
More broadly, the Obergefell Court recognized that the right to marry is grounded in four "principles and traditions."[784] These involve the concepts that (1) marriage (and choosing whom to marry) is inherent to individual autonomy protected by the Constitution; (2) marriage is fundamental to supporting a union of committed individuals; (3) marriage safeguards children and families;[785] and (4) marriage is essential to the nation's social order, because it is at the heart of many legal benefits.[786] With this conceptualization of the right to marry in mind, the Court found no difference between same- and opposite-sex couples with respect to any of the right's four central principles, concluding that a denial of marital recognition to same-sex couples ultimately "demean[ed]" and "stigma[tized]" those couples and any children resulting from such partnerships.[787] Given this conclusion, the Court held that, while limiting marriage to opposite-sex couples may have once seemed "natural," such a limitation was inconsistent with the right to marriage inherent in the "liberty" of the person as protected by the Fourteenth Amendment.[788]
In the context of federal Social Security benefits, the Court has approved certain benefits restrictions related to the incidents or prerequisites for marriage.[789] In these cases, the Court generally found that the regulations at issue did not substantially interfere with the decision to enter into marriage and at most had an indirect impact on that decision.[790]
Sexual Activity, Privacy, and Substantive Due Process[edit | edit source]
Since the 1960s, the Supreme Court has considered the constitutionality of several governmental actions aimed at regulating aspects of sexual conduct. These actions have included efforts to regulate the use of contraceptives; the possession or distribution of obscene materials; and individuals' engagement in same-sex intimate activities. To the extent that the Court has invalidated certain governmental actions in this context, it has often relied on the existence of a right to privacy in the Constitution. However, the manner in which the Court has interpreted this privacy right has evolved over time.
In 1965, the Court, in Griswold v. Connecticut, first recognized a protected right of marital privacy when it struck down a state law that banned the use of contraceptives.[791] The law, in the Court's view, "operate[d] directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation" and impermissibly intruded upon the fundamental right of privacy surrounding the marriage relationship.[792] At the time, the Court concluded that this privacy right stemmed not from the Fourteenth Amendment's Due Process Clause, but from the "penumbras" of the Bill of Rights.[793] In Eisenstadt v. Baird, through the application of equal protection principles, the Court effectively extended the right to use contraceptives to unmarried couples.[794]
After Griswold, the Court considered the right of privacy in a different context in Stanley v. Georgia. In that case, the Court struck down a state criminal law that banned the possession of "obscene matter."[795] The defendant in Stanley was charged under the state law after the authorities executed a warrant at his home in connection with an unrelated investigation and uncovered three reels of eight-millimeter film deemed to be "obscene."[796] In holding that both the First and Fourteenth Amendments "prohibit making mere private possession of obscene material a crime," the Court found that the mere categorization of the films as "obscene" was insufficient to justify "such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments."[797] In so concluding, the Court seemingly suggested that certain personal activities that were otherwise unprotected could obtain some level of constitutional protection by being performed in particular private locations, such as the home.[798] This broad conception of a privacy right could potentially protect even illegal personal activities if they are practiced in the privacy of one's home.
In a series of subsequent cases addressing both federal and state law regulating obscene materials, however, the Court upheld those laws and largely confined Stanley to its facts.[799] In Paris Adult Theatre I v. Slaton, the Court, in upholding a state-sought injunction prohibiting the showing of allegedly obscene films by two theaters, further rejected the argument "that individual 'free will' must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual's desire to see or acquire obscene plays, movies, and books."[800] In the Court's view, "[t]otally unlimited play for free will . . . is not allowed in our or any other society."[801]
Ultimately, the idea that acts should be protected not because of what they are, but because of where they are performed, may have begun and ended with Stanley. Instead, the Court has recognized, in sometimes disparate lines of cases, a right of personal privacy "deemed fundamental or implicit in the concept of ordered liberty."[802] Describing its pre-1973 precedents, the Court in Roe v. Wade stated that this guarantee of personal privacy encompasses "activities related to marriage, procreation, contraception, family relationships, and child rearing and education."[803] Roe itself recognized this privacy right, "founded in the Fourteenth Amendment's concept of personal liberty," to extend to the right to obtain an abortion--a recognition that the Court would later retreat from almost five decades later.[804] In Carey v. Population Services International, the Court further deemed the protected right of privacy to encompass "[t]he decision whether or not to beget or bear child" in striking down a state law that banned the distribution of contraceptives to adults except by licensed pharmacists and that forbade any person to sell or distribute contraceptives to a minor under 16.[805]
Until 2003, Bowers v. Hardwick largely defined the outer limits of the right to privacy. In that case, the Court upheld a state law that criminalized sodomy and in doing so, rejected the suggestion that its prior privacy cases protecting "family, marriage, or procreation" extended protection to private consensual homosexual sodomy.[806] The Court also rejected the broader claim that the privacy cases "stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription."[807] In so concluding, the Court relied significantly on the fact that prohibitions on sodomy have "ancient roots," and on the fact that half of the states still prohibited the practice.[808] Finding that the privacy of the home does not protect all behavior from state regulation, the Court determined that it was "unwilling to start down [the] road" of immunizing voluntary sexual conduct between consenting adults.[809]
In 2003, however, the Court overruled Bowers in Lawrence v. Texas, relying again on the right of privacy.[810] Citing its privacy cases starting with Griswold, the Court found that sodomy laws directed at homosexuals impermissibly "seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals."[811] The Court concluded that the state law furthered "no legitimate state interest which can justify its intrusion into the personal and private life of the individual."[812] Although the Court seemed to recognize that a state may have an interest in regulating personal relationships where there is a threat of "injury to a person or abuse of an institution the law protects,"[813] it seemed to reject reliance on historical notions of morality as guides to what personal relationships are to be protected.[814] Consequently, the outer limits of this privacy right, as it relates to regulation of sexual activity, remain unclear.[815]
Abortion[edit | edit source]
Abortion, Roe v. Wade, and Pre-Dobbs Doctrine[edit | edit source]
In 1973, the Court concluded in Roe v. Wade that the U.S. Constitution protects a woman's decision to terminate her pregnancy.[816] The Court's decision dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in numerous states, the District of Columbia, and the territories. In reaching its decision, the Court conducted a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on the procedure were of relatively recent vintage and thus lacked the historical foundation that might have preserved them from constitutional review.[817]
The Roe Court ruled that states may not categorically proscribe abortions by making their performance a crime.[818] The constitutional basis for the decision rested upon the conclusion that the right of privacy embraces a woman's decision to carry a pregnancy to term.[819] With regard to the scope of that privacy right, the Court stated that it includes "only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty'" and bears some extension to activities related to marriage, procreation, contraception, family relationships, child rearing, and education.[820] Such a right, the Court concluded, "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."[821]
With respect to protecting the right to an abortion against state interference, the Court held that because the right of privacy is a fundamental right, only a "compelling state interest" could justify its limitation by a state.[822] Thus, while it recognized the legitimacy of a state interest in protecting maternal health and preserving a fetus's potential life, as well as the existence of a rational connection between these two interests and a state's abortion restrictions, the Court held these interests insufficient to justify an absolute ban on abortions.[823]
Instead, the Court emphasized the durational nature of pregnancy and found the state's interests in maternal health and fetal life to be sufficiently compelling at only certain stages of pregnancy to permit the regulation or prohibition of the procedure. Finding that an abortion is no more dangerous to maternal health than childbirth in the first trimester of pregnancy, the Court concluded that the compelling point for regulating abortion to further a state's interest in maternal health was at approximately the end of the first trimester.[824] Until that point, the abortion decision and its effectuation was to be left exclusively to the medical judgment of the pregnant woman's doctor in consultation with the patient.[825] After the end of the first trimester, however, the state could promote its interest in maternal health by regulating the abortion procedure in ways reasonably related to maternal health.[826]
The compelling point with respect to the state's other interest in potential life was at viability, which the Court described as the point at which the fetus is "potentially able to live outside the mother's womb."[827] Following viability, the state's interest permitted it to regulate and even proscribe an abortion except when necessary, in appropriate medical judgment, for the preservation of the life or health of the woman.
In a companion case, Doe v. Bolton, the Court extended Roe by warning that just as states may not restrict abortion by making its performance a crime, they may not make abortions unreasonably difficult to obtain by prescribing elaborate procedural barriers.[828] In Doe, the Court struck down Georgia's requirements that abortions be performed in licensed hospitals; that abortions be approved beforehand by a hospital committee; and that two physicians concur in the abortion decision.[829]
Following Roe, as states adopted new abortion regulations, the Court settled questions involving a variety of related topics, including informed consent for the woman seeking an abortion, mandatory waiting periods before the procedure could be performed, and spousal consent requirements.[830] In 1983, in City of Akron v. Akron Center for Reproductive Health, the Court expressly reaffirmed Roe before invalidating several provisions of an Akron, Ohio abortion ordinance.[831] Acknowledging the Court's role in defining the limits of a state's authority to regulate abortion, the Court in City of Akron maintained that the doctrine of stare decisis "while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law."[832]
In 1986, the Court again reaffirmed Roe in Thornburgh v. American College of Obstetricians and Gynecologists.[833] Reviewing several provisions of Pennyslvania's Abortion Control Act, the Court observed that the constitutional principles that guided its decisions in Roe and Doe v. Bolton "still provide the compelling reason for recognizing the constitutional dimensions of a woman's right to decide whether to end her pregnancy."[834]
In 1989, however, a plurality of the Court questioned the continued use of Roe's trimester framework to evaluate abortion regulations. In Webster v. Reproductive Health Services, the Court upheld two Missouri abortion regulations: a restriction on the use of public employees and facilities for the performance of abortions; and a requirement that a physician ascertain a fetus's viability before performing an abortion, if the physician had reason to believe that a woman was twenty or more weeks pregnant.[835] Although the Court did not overrule Roe in Webster, a plurality of Justices indicated that it was willing to apply a less stringent standard of review to abortion regulations.[836] In separate concurring opinions, two Justices also criticized Roe and the trimester framework.[837]
In 1992, a plurality of the Court rejected Roe's trimester framework in a case involving Pennsylvania's Abortion Control Act.[838] In Planned Parenthood of Southeastern Pennsylvania v. Casey, the plurality explained that "in its formulation [the framework] misconceives the pregnant woman's interest . . . and in practice it undervalues the State's interest in potential life[.]"[839] In its place, the plurality adopted a new "undue burden" standard, maintaining that this standard recognized the need to reconcile the government's interest in potential life with a woman's right to decide to terminate her pregnancy.[840] The plurality indicated that an undue burden exists if the purpose or effect of an abortion regulation is "to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."[841]
In adopting the new undue burden standard, Casey nonetheless reaffirmed the essential holding of Roe, which the plurality described as having three parts.[842] First, a woman has a right to choose to have an abortion prior to viability without undue interference from the state.[843] Second, the state has a right to restrict abortions after viability so long as the regulation provides an exception for pregnancies that endanger a woman's life or health.[844] Third, the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus.[845]
Following Casey, the Court applied the undue burden standard in two cases involving the so-called "partial-birth" abortion procedure.[846] In Stenberg v. Carhart, the Court concluded that a Nebraska statute that prohibited the performance of partial-birth abortions was unconstitutional because it failed to include an exception to protect the health of the mother and because the language defining the prohibited procedure was too vague. In Gonzales v. Carhart, the Court applied the undue burden standard to the federal Partial-Birth Abortion Ban Act of 2003.[847] Distinguishing the act from the Nebraska statute at issue in Stenberg, the Court concluded that the federal law did not impose an undue burden on a woman's ability to obtain an abortion and was not unconstitutionally vague.[848]
In Gonzales, the Court also concluded that the federal law was not unconstitutionally vague because it provides doctors with a reasonable opportunity to know what conduct is prohibited.[849] Unlike the Nebraska statute, which prohibited the delivery of a "substantial portion" of the fetus, the federal law includes "anatomical landmarks" that identify when an abortion procedure will be subject to the act's prohibitions.[850] The Court observed: "[I]f an abortion procedure does not involve the delivery of a living fetus to one of these 'anatomical landmarks'--where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother--the prohibitions of the Act do not apply."[851]
In 2016, the Court provided further guidance on applying the undue burden standard in Whole Woman's Health v. Hellerstedt.[852] In Whole Woman's Health, the Court invalidated two Texas requirements that applied to abortion providers and physicians who perform the procedure: a requirement that physicians who perform or induce abortions have admitting privileges at a hospital within thirty miles from the location where the abortion was performed or induced; and a requirement that abortion facilities satisfy the same standards as ambulatory surgical centers.[853] In applying the undue burden standard, the Court in Whole Woman's Health emphasized that reviewing courts must consider "the burdens a law imposes on abortion access together with the benefits those laws confer."[854] The Court also indicated that considerable weight should be given to the evidence and arguments presented in judicial proceedings when evaluating the constitutionality of abortion regulations.[855]
In 2020, the Court invalidated a Louisiana law that required physicians who performed abortions to have admitting privileges at a hospital within thirty miles of the location where the procedure was performed. In June Medical Services v. Russo, a majority of the Court concluded that the law imposed an undue burden on a woman's ability to obtain an abortion.[856] Justice Stephen Breyer authored an opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, that relied heavily on Whole Woman's Health.[857] Justice Breyer maintained that the laws being reviewed in June Medical Services and Whole Woman's Health were "nearly identical," and that the Louisiana law "must consequently reach a similar conclusion."[858] In a separate opinion, Chief Justice John Roberts concurred in the judgment, emphasizing that the legal doctrine of stare decisis required June Medical Services to be decided like Whole Woman's Health.[859]
Applying the undue burden standard in June Medical Services, Justice Breyer reiterated that the standard requires balancing an abortion regulation's benefits against any burdens it imposes.[860] The plurality maintained that the district court faithfully engaged in this balancing, concluding that the closure of abortion facilities and a reduction in the number of physicians performing abortions outweighed the fact that the admitting privileges requirement provided no significant health benefit.[861]
Concurring in the judgment, Chief Justice Roberts agreed that the Louisiana law and the Texas law at issue in Whole Woman's Health were nearly identical.[862] Although he dissented in Whole Woman's Health and indicated in his concurrence that the Texas case was wrongly decided, he nevertheless maintained that stare decisis required the invalidation of the Louisiana law.[863] Despite his concurrence in the judgment, however, Chief Justice Roberts questioned how the undue burden standard is now applied as a result of Whole Woman's Health.[864] Discussing the balancing of an abortion regulation's benefits and burdens, the Chief Justice contended that nothing in Casey suggested that courts should engage in this kind of weighing of factors.[865] According to the Chief Justice, Casey focused on the existence of a substantial obstacle as sufficient to invalidate an abortion regulation and did not "call for consideration of a regulation's benefits[.]"[866] Reviewing the burdens imposed by the Louisiana law, such as fewer abortion providers and facility closures, the Chief Justice agreed with the plurality that "the determination in Whole Woman's Health that Texas's law imposed a substantial obstacle requires the same determination about Louisiana's law."[867] Nevertheless, the Chief Justice further observed that "the discussion of benefits in Whole Woman's Health was not necessary to its holding."[868]
Restrictions on Abortion Funding[edit | edit source]
In three related 1977 decisions, the Court ruled on whether Title XIX of the Social Security Act, which establishes the Medicaid program, or the Constitution requires the government to pay for nontherapeutic or elective abortions sought by indigent women. In Beal v. Doe, the Court held that nothing in the language or legislative history of the Medicaid statute requires a participating state to fund every medical procedure falling within delineated categories of medical care.[869] The Court determined that it was not inconsistent with the statute's goals to refuse to fund unnecessary medical services.[870] Nevertheless, the Court also indicated that the statute permits a state to include coverage for nontherapeutic abortions "if it so desires."[871]
In Maher v. Roe, the Court concluded that the Equal Protection Clause does not require a state participating in the Medicaid program to pay expenses incident to nontherapeutic abortions simply because the state has made a policy choice to pay expenses incident to childbirth.[872] The Court determined that Connecticut's policy of favoring childbirth over abortion did not impinge on the right to abortion recognized in Roe.[873] Distinguishing the policy from the Texas law at issue in Roe and other abortion restrictions it previously invalidated, the Court explained that the policy "places no obstacles--absolute or otherwise--in the pregnant woman's path to an abortion."[874]
Finally, in Poelker v. Doe, the Court upheld a St. Louis, Missouri regulation that denied indigent pregnant women nontherapeutic abortions at city-owned public hospitals.[875] Citing Maher, the Court explained that the constitutional question presented in Poelker was "identical in principle," and that the city's decision to provide publicly financed hospital services for childbirth, but not nontherapeutic abortions, was permissible.[876] Poelker addressed only the performance of abortions at public hospitals and did not consider the authority of private hospitals to prohibit abortion services.
The Court's decisions in Beal, Maher, and Poelker left unresolved the question whether the government could prohibit the use of federal or state funds for therapeutic or medically necessary abortions. In 1980, the Court upheld the Hyde Amendment, an annual appropriations provision that restricts the use of federal funds to pay for abortions provided through the Medicaid program.[877] The Court found that the Hyde Amendment did not violate the Due Process, the Equal Protection guarantees of the Fifth Amendment, or the Establishment Clause of the First Amendment.[878] The Court also recognized the right of a state participating in the Medicaid program to fund only those medically necessary abortions for which it received federal reimbursement.[879] In a companion case raising similar issues, the Court held that an Illinois statutory funding restriction comparable to the Hyde Amendment also did not violate the Equal Protection Clause.[880] As a result of the Court's decisions, neither the states nor the federal government have a statutory or constitutional obligation to fund all medically necessary abortions.
Abortion, Dobbs v. Jackson Women's Health Organization, and Post-Dobbs Doctrine[edit | edit source]
In 2022, a majority of the Court overruled the Court's prior decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, determining that the Constitution does not confer a right to an abortion. In Dobbs v. Jackson Women's Health Organization, the Court maintained that it was returning the regulation of abortion to the people and their elected reprentatives.[881] Writing for the Court in Dobbs, Justice Samuel Alito described Roe as "egregiously wrong from the start" because the Constitution makes no reference to abortion and a right to the procedure is not implicitly protected by any constitutional provision.[882]
While the Court in Roe and Casey determined that a right of privacy derived from the Fourteenth Amendment's concept of personal liberty under the Due Process Clause was broad enough to encompass a right to abortion, the Dobbs Court characterized these earlier decisions as "remarkably loose in [their] treatment of the constitutional text"[883] and "hav[ing] enflamed debate and deepened division."[884] The majority explained that, in evaluating whether the Constitution confers a right to an abortion, the Due Process Clause can guarantee some rights not explicitly mentioned in the Constitution. It indicated, however, that substantive due process rights, like a right to abortion, may be found only when they are deeply rooted in the Nation's history and tradition, and are implicit in the concept of ordered liberty.
Reviewing common law and statutory restrictions on abortion before and after the Fourteenth Amendment's ratification, the majority maintained that the "inescapable conclusion is that a right to abortion is not deeply rooted in the Nation's history and traditions."[885] The majority emphasized, for example, that abortion was prohibited in three-quarters of the states when the Fourteenth Amendment was adopted, and thirty states still prohibited the procedure when Roe was decided.[886] Thus, the Court held that the Fourteenth Amendment does not protect the right to an abortion.
The Court further considered whether the doctrine of stare decisis, which generally directs courts to adhere to precedent, should guide it to uphold Roe and Casey. Acknowledging that the doctrine promotes evenhanded decisionmaking and protects those who have relied on past decisions, the majority nevertheless observed that "in appropriate circumstances [it] must be willing to reconsider and, if necessary, overrule constitutional decisions."[887] The majority indicated that five factors, derived from its prior cases, strongly favored overruling Roe and Casey: the nature of their error (i.e., the Court's erroneous interpretation of the Constitution in those decisions); the quality of their reasoning (i.e., the Court's reasoning in Roe "stood on exceptionally weak grounds"); the "workability" of the rules they imposed on the country (i.e., the unworkability of Casey's undue burden standard for evaluating abortion regulations); their disruptive effect on other areas of the law (i.e., the prior decisions' distortion of other legal doctrines involving standing, severability, and other principles); and the absence of concrete reliance (i.e., abortions are generally unplanned and reproductive planning can be quickly adjusted).[888] In light of these factors, the majority concluded that, under traditional stare decisis factors, continued adherence to Roe and Casey was inappropriate. This conclusion, the majority observed, should not be affected by concerns that the Court was acting in response to social and political pressure.[889] The majority maintained that the Court cannot exceed the scope of its authority under the Constitution and cannot allow its decisions "to be affected by any extraneous influences such as concern about the public's reaction[.]"[890]
By overruling Roe and Casey, the Dobbs Court not only held that the Constitution does not guarantee a right to abortion, but also determined that abortion restrictions will not be subject to the viability and undue burden standards established by those decisions. If challenged, abortion restrictions will now be evaluated under rational basis review, a judicial review standard that is generally deferential to lawmakers.[891] The majority explained that under rational basis review, a law regulating abortion "must be sustained if there is a rational basis on which the legislature could have thought it would serve legitimate state interests."[892] The majority indicated that these interests may include protecting prenatal life, the mitigation of fetal pain, and preserving the medical profession's integrity.[893] Applying rational basis review in Dobbs to a Mississippi law that prohibits abortion once a fetus's gestational age is greater than fifteen weeks, the majority contended that these legitimate interests justify such a law.[894]
Medical Care[edit | edit source]
Right to Refuse Medical Treatment and Substantive Due Process[edit | edit source]
In multiple decisions, the Supreme Court has recognized that the Due Process Clause subsumes a constitutionally protected right to refuse medical care.[895] The Court has maintained, however, that this right must be balanced against relevant state interests, including protection of public health, safety, and human life.[896] In Jacobson v. Massachusetts, the Court upheld a Massachusetts law allowing local public health officials to require vaccination against smallpox.[897] While the petitioner in Jacobson argued that the compulsory vaccination law infringed upon his right "to care for his own body and health in such way as to him seems best," the Court explained that the state's interest in protecting communities against the spread of disease was "of paramount necessity."[898]
The Supreme Court has also addressed the scope of an incarcerated individual's right to reject antipsychotic medication.[899] For instance, in Washington v. Harper, the Court considered an inmate petitioner's constitutional challenge to a state prison policy that, under certain conditions, permitted involuntary psychotropic drug treatment for inmates with mental illness.[900] While acknowledging the petitioner's "significant liberty interest" in refusing these drugs under the Fourteenth Amendment's Due Process Clause, the Court's majority nevertheless concluded that the policy was constitutional.[901] Relying on a "standard of reasonableness" articulated in earlier cases involving prisoner rights, the Court explained that the policy conformed with substantive due process requirements, as the state had a legitimate interest in prison safety and security, and the state's forced medication policy was a rational means of advancing these penological interests.[902] The Court further held, in light of the requirements of a prison setting, the Due Process Clause "permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest."[903]
In Cruzan v. Director, Missouri Department of Health, the Court considered whether an incompetent individual has a constitutional right to decline lifesaving nutrition and hydration.[904] The case involved the substantive due process rights of a woman in a persistent vegetative state and her parents' request to terminate use of the feeding and hydration equipment that kept her alive.[905] At issue before the Court was whether it was constitutional for Missouri to require the family members to provide "clear and convincing evidence" of the woman's desire to withdraw life support before honoring the family's request.[906]
Although a majority of Supreme Court Justices signaled that the Due Process Clause protects a competent person's right to refuse life-sustaining medical interventions, the Court, in a 5-4 decision, upheld the state's imposition of evidentiary requirements under the circumstances presented in the case.[907] In its majority opinion, the Court emphasized the legitimacy of the state's interest in preserving human life and concluded that Missouri was not required to follow the family's judgment or "anyone but the patient" in making this health care treatment decision.[908]
Physician Assisted-Death and Substantive Due Process[edit | edit source]
The Supreme Court recognized in Cruzan v. Missouri Department of Health that the Due Process Clause includes the constitutionally protected right to refuse life-sustaining medical treatment, including nutrition and hydration.[909] While refusing medical interventions may ultimately lead to a patient's death, the Court unanimously held in a subsequent case, Washington v. Glucksberg, that this right does not extend to more active forms of medical intervention to assist terminally ill patients in ending their lives.[910]
In Glucksberg, terminally ill patients, physicians, and a nonprofit organization challenged a long-standing Washington state law that criminalized "knowingly caus[ing] or aid[ing] another person to attempt suicide."[911] The plaintiffs argued that the Supreme Court's decisions in Cruzan and Planned Parenthood of Southeastern Pennsylvania v. Casey suggested that the Due Process clause broadly includes protections for "basic and intimate exercises of personal autonomy."[912] In reviewing this question, the Court began by "carefully formulating" the liberty interest in question.[913] Although the lower courts and litigants had variously defined the question as a "right to die," the Court provided a narrower characterization as whether the Due Process Clause's protection of liberty included a right to assistance in committing suicide.[914]
The Court next examined the country's history, legal traditions, and practices with respect to that narrowly defined right.[915] The Court first noted the long history of criminalizing both suicide and assistance in suicide as distinguishing this case from its decision in Cruzan, which had relied on the long history of the right to refuse medical treatment.[916] The Court also rejected the plaintiffs' reliance upon Casey, noting that while many of the interests protected by the Due Process Clause involve personal autonomy, not all important, intimate, and personal decisions are so protected.[917] While the Court's decision in Glucksberg would appear to preclude constitutional protection for medical interventions intended to cause death, the question of whether there is a protected right to palliative or pain-relieving care during the dying process may remain an open question.[918]
Civil Commitment and Substantive Due Process[edit | edit source]
The Supreme Court has recognized, under the Due Process Clause, certain substantive liberty rights of people with mental disabilities who are involuntarily committed to public institutions. While a state has a substantial interest in institutionalizing persons in need of care, both for the protection of such people themselves and for the protection of others, it generally cannot constitutionally confine "a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends."[919]
Once committed, an individual also "enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests."[920] In determining what is "reasonable," however, the Court instructs that "courts must show deference to the judgment exercised by a qualified professional," such that liability may be imposed "only when decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment."[921] The Court has also stated that due process requires that the conditions and duration of civil commitment bear "some reasonable relation" to the purpose for which a person is committed.[922]
States may have more latitude to civilly confine certain individuals predisposed to engage in specific criminal behaviors. In Kansas v. Hendricks, for instance, the Court upheld a Kansas law that authorized the state to civilly commit individuals likely to engage in "predatory acts of sexual violence" due to do a "mental abnormality" or a "personality disorder," thus permitting a defendant diagnosed as a pedophile to be civilly committed after his release from prison.[923] In Kansas v. Crane, the Court clarified that while civil commitment under the same law did not require a finding of total lack of control by the defendant, there must be "proof of serious difficulty in controlling behavior" to support the civil commitment.[924] The Constitution, the Court held, does not permit civil commitment of "the type of dangerous sexual offender considered in Hendricks without any lack-of-control determination."[925] Such "lack of control" finding is necessary "to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case."[926]
Due Process Limits on State Action[edit | edit source]
Personal Jurisdiction[edit | edit source]
Overview of Personal Jurisdiction and Due Process[edit | edit source]
"Personal jurisdiction" or in personam jurisdiction refers to a court's power over a person (or entity) who is a party to, or involved in, a case or controversy before the court, including its power to render judgments affecting that person's rights.[927] Prior to the states' ratification of the Fourteenth Amendment and the Supreme Court's 1877 decision in Pennoyer v. Neff, a nonresident who received an adverse judgment from one state court would often wait until the winning party sought to obtain enforcement of the judgment[928] in the nonresident's state before challenging the issuing court's exercise of personal jurisdiction over the nonresident.[929] State (and, in some cases, federal)[930] courts considering whether such judgments were enforceable would typically resolve such jurisdictional challenges on the basis of general, customary law principles[931] that had been shaped by the rules for recognition of foreign judgments under international law.[932]
However, since the Supreme Court's decision in Pennoyer, the Court has interpreted the Due Process Clause of the Fourteenth Amendment[933] to limit the power of state courts to render judgments affecting the personal rights of defendants[934] who do not reside within the state's territory.[935] Pennoyer converted the issue of personal jurisdiction into a question of federal constitutional law, allowing a party to obtain direct review of a state court's judgment in federal court (i.e., review of the judgment on appeal) on the grounds that the state court lacked personal jurisdiction over the party.[936] Under the Supreme Court's interpretation of the Fourteenth Amendment, a state court that issued a judgment affecting a nonresident without jurisdiction had violated the constitutional rights of that person by depriving the individual of property without due process of law.[937]
Over the years, the Supreme Court has offered three main justifications for the constitutional constraints on a court's assertion of personal jurisdiction over nonresident persons and corporations. First, each state's status as a "co-equal sovereign" in a federal system of government implies at least some limits on the power of its courts to render judgments affecting the rights of entities outside of that state's boundaries.[938] Second, constitutional limits on personal jurisdiction attempt to address concerns about the unfairness of subjecting defendants to litigation in a distant or inconvenient forum.[939] Finally, constitutional limits on the exercise of personal jurisdiction recognize that the Due Process Clause protects defendants from being deprived of life, liberty, or property by a tribunal without lawful power.[940]
The Supreme Court's jurisprudence addressing the doctrine of personal jurisdiction as applied in state courts spans a period of American history that has witnessed a significant expansion of interstate and global commerce, as well as major technological advancements in transportation and communication.[941] These changes produced a fundamental shift in the Court's views concerning the doctrine.[942] Although the Court initially considered the defendant's physical presence within the forum state to be the touchstone of the exercise of personal jurisdiction over him or her,[943] it later rejected strict adherence to this rule in favor of a more flexible standard that examines a nonresident defendant's contacts with the forum state to determine whether those contacts make it reasonable to require him to respond to a lawsuit there.[944]
The Supreme Court's opinions in International Shoe Co. v. Washington and subsequent cases have established a two-part test for determining when a state court's exercise of personal jurisdiction over each nonresident defendant sued by a plaintiff comports with due process: (1) the defendant must have established minimum contacts with the forum state that demonstrate an intent to avail itself of the benefits and protections of state law; and (2) it must be reasonable to require the defendant to defend the lawsuit in the forum.[945] Since that fundamental shift, much of the Court's jurisprudence addressing the limits that the Constitution places on state courts' exercise of personal jurisdiction has addressed the quality and nature of the "minimum contacts" among the defendant, the forum, and litigation that the Constitution requires before a court may exercise jurisdiction over the defendant.[946] Questions over personal jurisdiction have become one of the most frequent constitutional issues resolved by lower federal courts,[947] and are the basis for a dismissal of complaints in a considerable number of cases lodged in both federal and state court.[948]
When determining whether a defendant has minimum contacts with the court in which the action is initially filed, the Court has distinguished the types of contacts sufficient for a court's exercise of "specific" personal jurisdiction over the defendant from those contacts sufficient for its exercise, alternatively, of "general" jurisdiction. A court's exercise of specific jurisdiction may be constitutional when the defendant: (1) "purposefully avails itself of the privilege of conducting activities" within the forum state; and (2) the defendant's contacts with the forum give rise to, or are related to, the plaintiff's claims.[949] By contrast, a court's exercise of general jurisdiction over a nonresident defendant for any claim--even if all the incidents underlying the claim occurred in a different state--may be constitutional when the defendant's activities in the forum state are so substantial that it is reasonable to require it to defend a lawsuit that did not arise out of its activities in the forum state and is unrelated to those activities.[950] In more recent years, the Court has significantly limited the types of activities or affiliations of the defendant in the forum state sufficient for general jurisdiction, holding that those contacts must be so substantial as to render the defendant "essentially at home" in the forum state.[951] The Court has clarified that, absent exceptional circumstances, a corporate defendant is "at home" when it is incorporated in the forum state or maintains its principal place of business there (e.g., the corporation is headquartered in the state).[952]
Although the Supreme Court has adopted a more flexible standard for evaluating a state court's assertion of personal jurisdiction, it has also confirmed that several traditional bases for the exercise of judicial power over a nonresident defendant for claims against him enjoy a presumption of constitutionality without requiring an independent inquiry into the contacts among the defendant, the forum, and the litigation. These traditional bases include: a defendant who is domiciled in the forum;[953] a defendant who has consented to jurisdiction;[954] and a defendant who is a natural person (i.e., not a business or governmental entity) and is served with process while physically present within the forum.[955] The Court has also indicated that a state court may adjudicate the personal status of a plaintiff in relation to the defendant (e.g., marital status) without considering whether personal jurisdiction over the defendant is constitutionally valid.[956]
Although the Supreme Court has decided several cases addressing the Fourteenth Amendment's limits on state courts' exercise of personal jurisdiction, it has generally declined to resolve questions about the extent to which the Fifth Amendment[957] may place similar jurisdictional limitations on federal courts. For example, the Supreme Court has declined to rule on whether it is constitutional for Congress to authorize nationwide service of process so that any federal court may exercise personal jurisdiction over a foreign defendant who has, in the aggregate, substantial contacts with the United States.[958] Consequently, this essay focuses on the Court's cases addressing the Fourteenth Amendment, which imposes due process requirements on actions by state governments.[959] However, it is important to note that the Federal Rules of Civil Procedure give federal district courts power to assert personal jurisdiction over a defendant to the same extent that a state court in the state where the federal district court is located may assert that power, meaning the same Fourteenth Amendment limits on personal jurisdiction generally apply to federal courts.[960]
Personal Jurisdiction from Founding Era to 1945[edit | edit source]
Prior to ratification of the Fourteenth Amendment and the Supreme Court's 1877 decision in Pennoyer v. Neff, a defendant that objected to the plaintiff's state court exercising personal jurisdiction over him would typically wait to object to such exercise of jurisdiction until the plaintiff sought to have the defendant's state court recognize and enforce the first court's judgment.[961] State (and, in some cases, federal)[962] courts considering whether such judgments were enforceable would resolve such jurisdictional challenges on the basis of general, customary law principles derived from English common law and international law addressing the recognition of foreign judgments rather than by applying the federal Constitution.[963] However, in Pennoyer, the Supreme Court stated that the Fourteenth Amendment's Due Process Clause imposes constitutional limits on state courts' exercise of personal jurisdiction over nonresident defendants.[964] Pennoyer converted the issue of personal jurisdiction into a question of federal constitutional law, allowing a party to obtain direct review of a state court's judgment in a federal court that was not bound to apply state statutes or judicial precedent when deciding whether the issuing court had personal jurisdiction over the parties.[965]
In Pennoyer, the Court indicated that, absent a defendant's consent, a state court's jurisdiction generally extends only to persons or property within its territory.[966] The Court grounded this "physical presence" approach in principles of federalism: each state of the union is a coequal and independent sovereign in the federal system, and thus possesses exclusive authority over persons and property within its domain.[967] Although the Court's decision in Pennoyer addressed personal jurisdiction over natural persons or people, the Court's early jurisprudence following the 1877 case established that state courts could potentially exercise jurisdiction over foreign corporations doing business in the state because the law presumed that those corporations had implicitly consented to personal jurisdiction, or could be deemed "present" within the state, based on their in-state activities.[968]
The Pennoyer Court's "physical presence" test established the constitutional foundation for strict limits on state courts' authority to exercise in personam jurisdiction over a nonresident defendant--that is, to render judgments concerning that defendant's personal rights and obligations.[969] Thus, for example, service upon a defendant by publishing notice of the lawsuit in a newspaper circulating in the forum state was insufficient to confer jurisdiction on a court to adjudicate the personal liability of a defendant who had left the state and did not intend to return.[970] Nevertheless, even in the absence of a nonresident defendant's physical presence or consent, courts could still attain jurisdiction over the defendant indirectly through the attachment (i.e., seizure) of the defendant's property interests within the forum and the provision of notice to the defendant.[971] In particular, a state court could exercise in rem jurisdiction[972] over a nonresident defendant's property interest in the state in order to adjudicate all of the rights or claims in a piece of property.[973] It could also exercise quasi in rem jurisdiction[974] over a nonresident defendant by adjudicating a plaintiff's claim to the property in relation to the defendant or to satisfy the claims of its own citizens against the defendant personally.[975] However, judgments resting upon the exercise of in rem or quasi in rem jurisdiction would not personally bind the defendant to an extent greater than the value of the property.[976]
Modern Doctrine on Personal Jurisdiction[edit | edit source]
Although Pennoyer's physical presence test informed the Supreme Court's jurisprudence related to jurisdiction for several decades, a significant expansion of the U.S. economy in the mid-twentieth century altered that focus. As commerce and travel among the states and between the states and foreign countries increased,[977] corporations expanded the geographical scope of their activities.[978] A more interconnected, global economy meant that a corporation's activities had greater potential to cause harm in distant jurisdictions, but also meant that businesses could more easily defend lawsuits arising from that harm in distant fora.[979] Faced with these new realities, the Court reconsidered the nature of the due process limitations on the jurisdiction of state courts over non-resident individuals and corporations that conducted activities in the states.[980] In the 1945 case International Shoe Co. v. Washington, the Court explained its rejection of a strict adherence to the physical presence test, holding that a state could authorize its courts to subject an out-of-state entity to in personam jurisdiction, consistent with due process, and thus require it to defend a lawsuit, if that entity had "certain minimum contacts" with the forum state "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice."[981] The Court rested its holding in part on the notion that an entity conducting activities in a state benefits from the protections of state law, and thus should have to respond to legal complaints arising out of its actions in the forum even if it is not "physically present" in the state.[982]
Thus, the Supreme Court's opinions in International Shoe and subsequent cases have established a more flexible two-part test for determining when a court's exercise of personal jurisdiction over a nonresident defendant sued by a plaintiff comports with due process: (1) the defendant has established minimum contacts with the forum state that demonstrate an intent to avail itself of the benefits and protections of state law; and (2) it is reasonable to require the defendant to defend the lawsuit in the forum.[983]
Nevertheless, as noted, the Court has confirmed that several traditional bases for exercising judicial power over a nonresident defendant continue to enjoy a presumption of constitutionality without requiring an independent inquiry into the contacts among the defendant, the forum, and the litigation. Specifically, the traditional bases for jurisdiction include if: (1) the defendant is domiciled in the forum state (e.g., a defendant who is a natural person intends to establish a permanent home in the forum or a corporation intends to establish a permanent headquarters);[984] (2) the defendant has consented to jurisdiction;[985] or (3) a defendant who is a natural person is served with process while he is physically present--even temporarily--within the forum.[986] The Court has also indicated that a state court may adjudicate the personal status of a plaintiff in relation to the defendant (e.g., marital status) without considering whether personal jurisdiction over the defendant is constitutionally valid.[987]
On June 27, 2023, the Supreme Court issued a decision in Mallory v. Norfolk Southern Railway Co., [988] holding that Pennsylvania had not violated the Fourteenth Amendment's Due Process Clause by requiring an out-of-state railroad company to consent to general personal jurisdiction and defend against a negligence lawsuit that did not arise out of the company's activities in the Commonwealth in order to conduct business in the state.[989] Relying on its 1917 precedent in Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., [990] the Court upheld the relevant provisions of Pennsylvania's corporate registration law, noting that they imposed the same "benefits and burdens" on domestic corporations.[991]
Minimum Contact Requirements for Personal Jurisdiction[edit | edit source]
Since its 1945 decision in International Shoe, the Supreme Court has elaborated on the nature and quality of the minimum contacts that a defendant must have with the forum in order for a court to subject him or her to personal jurisdiction in that forum consistent with due process. When determining whether a defendant has minimum contacts with the forum, the Court has distinguished the types of contacts sufficient for a court's exercise of "specific" personal jurisdiction over the defendant from those contacts sufficient for its exercise, alternatively, of "general" jurisdiction.
A court's exercise of specific jurisdiction may be constitutional when the defendant: (1) "purposefully avails itself of the privilege of conducting activities" within the forum state; and (2) the defendant's contacts with the forum give rise to, or are related to, the plaintiff's claims.[992] A defendant's contacts with the forum may "relate" to the plaintiff's claims even in the absence of a "strict causal relationship" between the contacts and claims.[993] However, when there is "no such connection [between the forum and the particular claims at issue], specific jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the State."[994]
By contrast, a state court's exercise of general jurisdiction over a nonresident defendant for any claim--even if all the incidents underlying the claim occurred in a different state--may be constitutional when the defendant's activities in the forum state are so substantial that it is reasonable to require it to defend a lawsuit that did not arise out of its activities in the forum state and is unrelated to those activities.[995] Perhaps in order to ensure greater predictability for defendants attempting to discern where they may be subject to suits on claims arising anywhere in the world,[996] in more recent years, the Court has significantly limited the types of activities or affiliations of the defendant in the forum state sufficient for general jurisdiction, holding that those contacts must be so substantial as to render the defendant "essentially at home" in the forum state.[997] The Court has clarified that, absent exceptional circumstances, a corporate defendant is "at home" when it is incorporated in the forum state or maintains its principal place of business there.[998] Insubstantial in-state business, in and of itself, does not suffice to permit an assertion of jurisdiction over claims that are unrelated to any activity occurring in a state.[999] For example, the Court in 2017 held in BNSF Railway v. Tyrrell that Montana courts could not exercise general jurisdiction over a railroad company that had over 2,000 miles of track and more than 2,000 employees in the state because the company was not incorporated or headquartered in Montana and the overall activity of the company in Montana was not "so substantial" as compared to its activities throughout all of the jurisdictions in which it conducted business so as to render the corporation "at home" in the state.[1000]
Although the Supreme Court has decided only a few cases that explore the scope of general personal jurisdiction since its opinion in International Shoe, leaving the bulk of such determinations to lower federal and state courts, it has decided several cases elaborating on the quality and nature of the defendant's contacts with the forum and litigation necessary for a court's exercise of specific jurisdiction over the defendant.[1001] A common theme throughout many of these decisions is that "unilateral activity" in the forum state by a person who has some family, business, or other relationship with a nonresident defendant will not suffice to establish a defendant's minimum contacts with the forum.[1002] In other words, jurisdiction is not proper merely because the defendant could have foreseen that a third party with which it has a family or business relationship (for example, a defendant's family member or customer of a defendant corporation) would have contacts with the forum.[1003] Rather, the defendant must "purposefully avail" itself "of the privilege of conducting activities within the forum State," thus invoking the benefits and protections of its laws.[1004] The defendant must have reasonably anticipated being haled into court there--a standard that potentially allows a defendant to predict where it will be subject to suit and plan the geographic scope of its activities or insure against the risk of being sued in a distant forum accordingly.[1005] The Court has also emphasized that the minimum contacts inquiry should not focus on the location of the resulting injury to the plaintiff; instead, the proper question is whether the defendant's conduct connects him to the forum in a meaningful way.[1006]
Since the Supreme Court decided International Shoe in 1945, many of its decisions on the minimum contacts test have addressed specific categories of contacts between the defendant and forum, such as the alleged tortious conduct of the defendant in the forum state; a contract between the defendant and an entity in the forum state; a business relationship between the defendant and a party in the forum state; and property interests of the defendant in the forum state. For example, in cases in which the plaintiff alleged that a nonresident had committed the tort of libel causing harm in the forum state, the Court upheld the exercise of specific personal jurisdiction over a defendant that intentionally targeted the state with publication of allegedly libelous material.[1007] The Court determined that regularly publishing a widely circulated magazine with knowledge that harm could occur to the state's residents amounted to a sufficient contact between the defendant, the forum, and the litigation.[1008] As a result, the Court has recognized that, provided there is a sufficient connection between the defendant and the forum, states have a "significant interest" in permitting their courts to exercise jurisdiction over defendants in order to redress harm that occurs within state boundaries.[1009]
Particularly since the 1980s, there has been disagreement among the Supreme Court Justices, however, as to when a nonresident corporation whose product causes injury within the forum state has "purposefully availed" itself of the privilege of conducting business within the state, and should therefore be subject to personal jurisdiction in that state in a tort action for products liability. In the 1987 case Asahi Metal Industry Co. v. Superior Court, four Justices agreed that a nonresident defendant's awareness that a product it manufactured would end up in the forum state through its intentional placement of the product in the stream of commerce outside of the forum did not by itself constitute an act directed at the forum sufficient for specific personal jurisdiction.[1010] Writing for a plurality of the Court, Justice Sandra Day O'Connor maintained that a tribunal lacked the authority to exercise personal jurisdiction over a defendant that had not performed additional actions in the forum state that demonstrated an intent to serve that state's market.[1011] According to her plurality opinion, because the defendant did not have clear notice that it could be subject to suit in California, it would have been unfair to subject the defendant to suit there.[1012] However, another four Justices would have held that the defendant's intentional placement of a product into the stream of commerce by itself was sufficient for personal jurisdiction because the defendant could foresee being sued in any state in which the product was regularly sold and marketed.[1013] Those Justices would have grounded this result in the benefits that defendants derive from the regular retail sale of their products in the forum and the protections of state law.[1014]
The Justices' disagreement over when a nonresident corporation whose product causes injury within the forum state has "purposefully availed" itself of the privilege of conducting business within the state, and should therefore be subject to personal jurisdiction in that state in a tort action for products liability, appears to remain unresolved after a 2011 case. In J. McIntyre Machinery, Ltd. v. Nicastro, a plurality of the Court indicated that a foreign manufacturer of a product cannot be subject to the jurisdiction of a state court based on its mere expectation that the products it manufactures in its home country and ships to an independent U.S. distributor might be distributed in the forum state.[1015] Instead, according to the plurality written by Justice Anthony Kennedy and joined by Chief Justice John Roberts, Justice Antonin Scalia, and Justice Clarence Thomas, the defendant must have directly targeted the individual state with its goods, thereby "purposefully availing" itself of the privilege of conducting in-state business.[1016] However, the plurality's view did not command a majority of the Court, and a narrower concurring opinion authored by Justice Stephen Breyer and joined by Justice Samuel Alito would have found jurisdiction lacking under any of the various tests for personal jurisdiction articulated in the Justices' opinions in Asahi because the shipment of products into, or their sale in, the forum state did not occur regularly, and there was no additional sales-related conduct (for example, marketing) by the defendant in the forum.[1017]
In addition to addressing cases involving a defendant's alleged tortious conduct, the Supreme Court has also addressed minimum contacts in the context of out-of-state defendants reaching out to a forum state to establish a continuing business relationship in that state. For example, the Court upheld a California court's exercise of specific personal jurisdiction over a Texas mail order insurance company that had no office or agent in California because the Texas company mailed an offer of insurance to the plaintiff's son in California.[1018] The son accepted the offer and continued to send the company premium payments through the mail to Texas from California until the son died in California.[1019] The Court noted that the suit arose from a contract that had a "substantial connection" with California, holding that the state had a significant interest in providing redress for its residents in cases in which insurance companies refuse to pay claims.[1020] Similarly, when a nonresident defendant establishes an office in a state to conduct business through agents in the state, he may have to answer a lawsuit related to those business activities when an agent is served in the forum, regardless of whether he consented to service of process through his agent.[1021]
Another context in which the Supreme Court has addressed the minimum contacts test involves contractual disputes between the parties to a lawsuit. Thus, when a franchisor headquartered in Florida brought suit in a local federal court against Michigan franchisees for the alleged breach of a franchise agreement to make required payments in Florida, the Court held that specific jurisdiction over defendants was proper based on the specific circumstances surrounding the contractual relationship.[1022] The Court stated that a contract between an out-of-state party and an individual in the forum state is insufficient by itself to establish personal jurisdiction if the contract lacks a substantial connection to the state as established by, among other things, an (1) examination of the parties' prior negotiations (for example, whether the defendant reached into the forum to negotiate the contract); (2) the terms of the contract (for example, where payments were to be made and which state's law was to govern); and (3) the course of dealing (for example, whether the defendant established a "substantial and continuing relationship" in the forum state).[1023]
The Court has also opined on when a defendant's property interests in the forum may serve as a contact for purposes of personal jurisdiction. In Shaffer v. Heitner, the Supreme Court held that a state court could not exercise quasi in rem jurisdiction over a nonresident defendant by attaching the defendant's property interests in the state without inquiring separately into whether these property interests and any other connections between the defendant, forum, and litigation established sufficient minimum contacts to satisfy the first prong of the International Shoe test.[1024] Thus, a Delaware court could not subject nonresident officers and directors of a Delaware corporation to personal jurisdiction for the alleged breach of duties to the corporation based solely on the court's attachment of their stock and stock options in the corporation.[1025] The Court noted that jurisdiction over property must in fact have a direct effect on the interests of the defendant in that property and therefore affect its personal rights.[1026] However, the Court also noted that in some cases, such as cases establishing title to real property, ownership of the property itself may establish sufficient contacts among the defendant, forum, and litigation.[1027]
Reasonableness Test for Personal Jurisdiction[edit | edit source]
Even if a nonresident defendant has minimum contacts with the forum, the Supreme Court has, at times, considered whether a state court's exercise of personal jurisdiction over him would comport with due process by examining the reasonableness of the exercise of jurisdiction.[1028] In International Shoe and its subsequent opinions, the Court has established a multi-factor test that seeks to ensure that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."[1029] The Court has subsequently clarified that in applying this test to evaluate the reasonableness of the exercise of jurisdiction in light of the defendant's contacts with the forum and litigation, it will examine several factors, including: (1) "the burden on the defendant"; (2) "the forum State's interest in adjudicating the dispute"; (3) "the plaintiff's interest in obtaining convenient and effective relief"; (4) "the interstate judicial system's interest in obtaining the most efficient resolution of controversies"; (5) and the "shared interest of the several States in furthering fundamental substantive social policies."[1030]
Although the Supreme Court has addressed the reasonableness prong of the International Shoe test for personal jurisdiction only in Asahi and Daimler, it has provided some guidance as to when courts may deem it reasonable to subject a defendant to suit. Thus, the Justices have, for example, suggested that courts should remain cautious about exercising personal jurisdiction over corporations domiciled abroad, particularly when most of the conduct at issue occurred overseas.[1031] Courts may therefore evaluate the risks that subjecting a foreign corporation to suit in the United States for overseas conduct would have on international relations between the United States and its trading partners.[1032] In a case involving the exercise of personal jurisdiction over a foreign corporation, moreover, the policies of other nations are relevant and must be carefully considered.[1033]
In addition, when considering the burden on the defendant of litigating the case in the forum state, the Court may consider it a heavy burden for a company domiciled abroad to travel from its foreign headquarters to have a dispute with another foreign corporation litigated in U.S. courts.[1034] This concern may stem in part from the notion that the interests of the plaintiff and forum are minimal when the claim is based on overseas transactions, the plaintiff is not a resident of the United States, and the allegedly tortious conduct could be deterred by subjecting companies over which the court has lawful judicial power to suit.[1035]
State Taxation[edit | edit source]
State Taxing Power[edit | edit source]
It was not contemplated that the adoption of the Fourteenth Amendment would restrain or cripple the taxing power of the states.[1036] When the power to tax exists, the extent of the burden is a matter for the discretion of the lawmakers,[1037] and the Court will refrain from condemning a tax solely on the ground that it is excessive.[1038] Nor can the constitutionality of taxation be made to depend upon the taxpayer's enjoyment of any special benefits from use of the funds raised by taxation.[1039]
Theoretically, public moneys cannot be expended for other than public purposes. Some early cases applied this principle by invalidating taxes judged to be imposed to raise money for purely private rather than public purposes.[1040] However, modern notions of public purpose have expanded to the point where the limitation has little practical import.[1041] Whether a use is public or private, although ultimately a judicial question, "is a practical question addressed to the law-making department, and it would require a plain case of departure from every public purpose which could reasonably be conceived to justify the intervention of a court."[1042]
The authority of states to tax income is "universally recognized."[1043] Years ago the Court explained that "[e]njoyment of the privileges of residence in the state and the attendant right to invoke the protection of its laws are inseparable from responsibility for sharing the costs of government. . . . A tax measured by the net income of residents is an equitable method of distributing the burdens of government among those who are privileged to enjoy its benefits."[1044] Also, a tax on income is not constitutionally suspect because it is retroactive. The routine practice of making taxes retroactive for the entire year of the legislative session in which the tax is enacted has long been upheld,[1045] and there are also situations in which courts have upheld retroactive application to the preceding year or two.[1046]
A state also has broad tax authority over wills and inheritance. A state may apply an inheritance tax to the transmission of property by will or descent, or to the legal privilege of taking property by devise or descent,[1047] although such tax must be consistent with other due process considerations.[1048] Thus, an inheritance tax law, enacted after the death of a testator but before the distribution of his estate, constitutionally may be imposed on the shares of legatees, notwithstanding that under the law of the state in effect on the date of such enactment, ownership of the property passed to the legatees upon the testator's death.[1049] Equally consistent with due process is a tax on an inter vivos transfer of property by deed intended to take effect upon the death of the grantor.[1050]
The taxation of entities that are franchises within the jurisdiction of the governing body raises few concerns. Thus, a city ordinance imposing annual license taxes on light and power companies does not violate the Due Process Clause merely because the city has entered the power business in competition with such companies.[1051] Nor does a municipal charter authorizing the imposition upon a local telegraph company of a tax upon the lines of the company within its limits at the rate at which other property is taxed but upon an arbitrary valuation per mile, deprive the company of its property without due process of law, inasmuch as the tax is a mere franchise or privilege tax.[1052]
States have significant discretion in how to value real property for tax purposes. Thus, assessment of properties for tax purposes over real market value is allowed as merely another way of achieving an increase in the rate of property tax, and does not violate due process.[1053] Likewise, land subject to mortgage may be taxed for its full value without deduction of the mortgage debt from the valuation.[1054]
A state also has wide discretion in how to apportion real property tax burdens. Thus, a state may defray the entire expense of creating, developing, and improving a political subdivision either from funds raised by general taxation, by apportioning the burden among the municipalities in which the improvements are made, or by creating (or authorizing the creation of) tax districts to meet sanctioned outlays.[1055] Or, where a state statute authorizes municipal authorities to define the district to be benefited by a street improvement and to assess the cost of the improvement upon the property within the district in proportion to benefits, their action in establishing the district and in fixing the assessments on included property, cannot, if not arbitrary or fraudulent, be reviewed under the Fourteenth Amendment upon the ground that other property benefited by the improvement was not included.[1056]
On the other hand, when the benefit to be derived by a railroad from the construction of a highway will be largely offset by the loss of local freight and passenger traffic, an assessment upon such railroad violates due process,[1057] whereas any gains from increased traffic reasonably expected to result from a road improvement will suffice to sustain an assessment thereon.[1058] Also the fact that the only use made of a lot abutting on a street improvement is for a railway right of way does not make invalid, for lack of benefits, an assessment thereon for grading, curbing, and paving.[1059] However, when a high and dry island was included within the boundaries of a drainage district from which it could not be benefited directly or indirectly, a tax imposed on the island land by the district was held to be a deprivation of property without due process of law.[1060] Finally, a state may levy an assessment for special benefits resulting from an improvement already made[1061] and may validate an assessment previously held void for want of authority.[1062]
State Jurisdiction to Tax[edit | edit source]
The operation of the Due Process Clause as a jurisdictional limitation on the taxing power of the states has been an issue in a variety of different contexts, but most involve one of two basic questions. First, is there a sufficient relationship between the state exercising taxing power and the object of the exercise of that power? Second, is the degree of contact sufficient to justify the state's imposition of a particular obligation? Illustrative of the factual settings in which such issues arise are 1) determining the scope of the business activity of a multi-jurisdictional entity that is subject to a state's taxing power; 2) application of wealth transfer taxes to gifts or bequests of nonresidents; 3) allocation of the income of multi-jurisdictional entities for tax purposes; 4) the scope of state authority to tax income of nonresidents; and 5) collection of state use taxes.
The Court's opinions in these cases have often discussed Due Process and Dormant Commerce Clause issues as if they were indistinguishable.[1063] A later decision, Quill Corp. v. North Dakota,[1064] however, used a two-tier analysis that found sufficient contact to satisfy Due Process but not Dormant Commerce clause requirements. In Quill,[1065] the Court struck down a state statute requiring an out-of-state mail order company with neither outlets nor sales representatives in the state to collect and transmit use taxes on sales to state residents, but did so based on Commerce Clause rather than due process grounds. In 2018, the Court, however, reversed course in South Dakota v. Wayfair, overturning Quill's Commerce Clause holding and upholding a South Dakota law that required certain large retailers that lacked a physical presence in the state to collect and remit sales taxes from retail sales to South Dakota residents.[1066] In so holding, the Wayfair Court concluded that while the Due Process and Commerce Clause standards "may not be identical or coterminous," they are "closely related," and there are "significant parallels" between the two standards.[1067]
Real Property and Tangible Personalty[edit | edit source]
Even prior to the ratification of the Fourteenth Amendment, it was a settled principle that a state could not tax land situated beyond its limits. Subsequently elaborating upon that principle, the Court has said that, "we know of no case where a legislature has assumed to impose a tax upon land within the jurisdiction of another State, much less where such action has been defended by a court."[1068] Insofar as a tax payment may be viewed as an exaction for the maintenance of government in consideration of protection afforded, the logic sustaining this rule is self-evident.
A state may tax tangible property located within its borders (either directly through an ad valorem tax or indirectly through death taxes) irrespective of the residence of the owner.[1069] By the same token, if tangible personal property makes only occasional incursions into other states, its permanent situs remains in the state of origin, and, subject to certain exceptions, is taxable only by the latter.[1070] The ancient maxim, mobilia sequuntur personam, which originated when personal property consisted in the main of articles appertaining to the person of the owner, yielded in modern times to the "law of the place where the property is kept and used." The tendency has been to treat tangible personal property as "having a situs of its own for the purpose of taxation, and correlatively to . . . exempt [it] at the domicile of its owner."[1071]
Thus, when rolling stock is permanently located and used in a business outside the boundaries of a domiciliary state, the latter has no jurisdiction to tax it.[1072] Further, vessels that merely touch briefly at numerous ports never acquire a taxable situs at any one of them, and are taxable in the domicile of their owners or not at all.[1073] Thus, where airplanes are continually in and out of a state during the course of a tax year, the entire fleet may be taxed by the domicile state.[1074]
Conversely, a nondomiciliary state, although it may not tax property belonging to a foreign corporation that has never come within its borders, may levy a tax on movables that are regularly and habitually used and employed in that state. Thus, although the fact that cars are loaded and reloaded at a refinery in a state outside the owner's domicile does not fix the situs of the entire fleet in that state, the state may nevertheless tax the number of cars that on the average are found to be present within its borders.[1075] But no property of an interstate carrier can be taken into account unless it can be seen in some plain and fairly intelligible way that it adds to the value of the road and the rights exercised in the state.[1076] Or, a state property tax on railroads, which is measured by gross earnings apportioned to mileage, is constitutional unless it exceeds what would be legitimate as an ordinary tax on the property valued as part of a going concern or is relatively higher than taxes on other kinds of property.[1077]
Intangible Personalty[edit | edit source]
To determine whether a state may tax intangible personal property, the Court has applied the fiction mobilia sequuntur personam (movable property follows the person) and has also recognized that such property may acquire, for tax purposes, a permanent business or commercial situs. The Court, however, has never clearly disposed of the issue whether multiple personal property taxation of intangibles is consistent with due process. In the case of corporate stock, however, the Court has obliquely acknowledged that the owner thereof may be taxed at his own domicile, at the commercial situs of the issuing corporation, and at the latter's domicile. Constitutional lawyers speculated whether the Court would sustain a tax by all three jurisdictions, or by only two of them. If the latter, the question would be which two--the state of the commercial situs and of the issuing corporation's domicile, or the state of the owner's domicile and that of the commercial situs.[1078]
Thus far, the Court has sustained the following personal property taxes on intangibles: (1) a debt held by a resident against a nonresident, evidenced by a bond of the debtor and secured by a mortgage on real estate in the state of the debtor's residence;[1079] (2) a mortgage owned and kept outside the state by a nonresident but on land within the state;[1080] (3) investments, in the form of loans to a resident, made by a resident agent of a nonresident creditor;[1081] (4) deposits of a resident in a bank in another state, where he carries on a business and from which these deposits are derived, but belonging absolutely to him and not used in the business;[1082] (5) membership owned by a nonresident in a domestic exchange, known as a chamber of commerce;[1083] (6) membership by a resident in a stock exchange located in another state;[1084] (7) stock held by a resident in a foreign corporation that does no business and has no property within the taxing state;[1085] (8) stock in a foreign corporation owned by another foreign corporation transacting its business within the taxing state;[1086] (9) shares owned by nonresident shareholders in a domestic corporation, the tax being assessed on the basis of corporate assets and payable by the corporation either out of its general fund or by collection from the shareholder;[1087] (10) dividends of a corporation distributed ratably among stockholders regardless of their residence outside the state;[1088] (11) the transfer within the taxing state by one nonresident to another of stock certificates issued by a foreign corporation;[1089] and (12) promissory notes executed by a domestic corporation, although payable to banks in other states.[1090]
The following personal property taxes on intangibles have been invalidated: (1) debts evidenced by notes in safekeeping within the taxing state, but made and payable and secured by property in a second state and owned by a resident of a third state;[1091] (2) a tax, measured by income, levied on trust certificates held by a resident, representing interests in various parcels of land (some inside the state and some outside), the holder of the certificates, though without a voice in the management of the property, being entitled to a share in the net income and, upon sale of the property, to the proceeds of the sale.[1092]
The Court also invalidated a property tax sought to be collected from a life beneficiary on the corpus of a trust composed of property located in another state and as to which the beneficiary had neither control nor possession, apart from the receipt of income therefrom.[1093] However, a personal property tax may be collected on one-half of the value of the corpus of a trust from a resident who is one of the two trustees thereof, not withstanding that the trust was created by the will of a resident of another state in respect of intangible property located in the latter state, at least where it does not appear that the trustee is exposed to the danger of other ad valorem taxes in another state.[1094] The first case, Brooke v. Norfolk,[1095] is distinguishable by virtue of the fact that the property tax therein voided was levied upon a resident beneficiary rather than upon a resident trustee in control of nonresident intangibles. Also different is Safe Deposit & Trust Co. v. Virginia,[1096] where a property tax was unsuccessfully demanded of a nonresident trustee with respect to nonresident intangibles under its control. Likewise, the more recent case of North Carolina Department of Revenue v. Kimberly Rice Kaestner 1992 Family Trust, which saw the Court invalidating a state tax imposed on trust income of an in-state beneficiary, appears to be limited to its facts, where the beneficiaries (1) had not received any trust income, (2) had no right to demand that income, and (3) were uncertain to ever receive that income.[1097]
A state in which a foreign corporation has acquired a commercial domicile and in which it maintains its general business offices may tax the corporation's bank deposits and accounts receivable even though the deposits are outside the state and the accounts receivable arise from manufacturing activities in another state. Similarly, a nondomiciliary state in which a foreign corporation did business can tax the "corporate excess" arising from property employed and business done in the taxing state.[1098] On the other hand, when the foreign corporation transacts only interstate commerce within a state, any excise tax on such excess is void, irrespective of the amount of the tax.[1099]
Also a domiciliary state that imposes no franchise tax on a stock fire insurance corporation may assess a tax on the full amount of paid-in capital stock and surplus, less deductions for liabilities, notwithstanding that such domestic corporation concentrates its executive, accounting, and other business offices in New York, and maintains in the domiciliary state only a required registered office at which local claims are handled. Despite "the vicissitudes which the so-called 'jurisdiction-to-tax' doctrine has encountered," the presumption persists that intangible property is taxable by the state of origin.[1100]
A property tax on the capital stock of a domestic company, however, the appraisal of which includes the value of coal mined in the taxing state but located in another state awaiting sale, deprives the corporation of its property without due process of law.[1101] Also void for the same reason is a state tax on the franchise of a domestic ferry company that includes in the valuation of the tax the worth of a franchise granted to the company by another state.[1102]
Transfer (Inheritance, Estate, Gift) Taxes[edit | edit source]
As a state has authority to regulate transfer of property by wills or inheritance, it may base its succession taxes upon either the transmission or receipt of property by will or by descent.[1103] But whatever may be the justification of their power to levy such taxes, since 1905 the states have consistently found themselves restricted by the rule in Union Transit Co. v. Kentucky,[1104] which precludes imposition of transfer taxes upon tangible which are permanently located or have an actual situs outside the state.
In the case of intangibles, however, the Court has oscillated in upholding, then rejecting, and again sustaining the levy by more than one state ,of death taxes upon intangibles. Until 1930, transfer taxes upon intangibles by either the domiciliary or the situs (but nondomiciliary) state, were with rare exceptions approved. Thus, in Bullen v. Wisconsin,[1105] the domiciliary state of the creator of a trust was held competent to levy an inheritance tax on an out-of-state trust fund consisting of stocks, bonds, and notes, as the settlor reserved the right to control disposition and to direct payment of income for life. The Court reasoned that such reserved powers were the equivalent to a fee in the property. It took cognizance of the fact that the state in which these intangibles had their situs had also taxed the trust.[1106]
On the other hand, the mere ownership by a foreign corporation of property in a nondomiciliary state was held insufficient to support a tax by that state on the succession to shares of stock in that corporation owned by a nonresident decedent.[1107] Also against the trend was Blodgett v. Silberman,[1108] in which the Court defeated collection of a transfer tax by the domiciliary state by treating coins and bank notes deposited by a decedent in a safe deposit box in another state as tangible property.[1109]
In the course of about two years following the Depression, the Court handed down a group of four decisions that placed the stamp of disapproval upon multiple transfer taxes and--by inference--other multiple taxation of intangibles.[1110] The Court found that "practical considerations of wisdom, convenience and justice alike dictate the desirability of a uniform rule confining the jurisdiction to impose death transfer taxes as to intangibles to the State of the [owner's] domicile."[1111] Thus, the Court proceeded to deny the right of nondomiciliary states to tax intangibles, rejecting jurisdictional claims founded upon such bases as control, benefit, protection or situs. During this interval, 1930-1932, multiple transfer taxation of intangibles came to be viewed, not merely as undesirable, but as so arbitrary and unreasonable as to be prohibited by the Due Process Clause.
The Court has expressly overruled only one of these four decisions condemning multiple succession taxation of intangibles. In 1939, in Curry v. McCanless, the Court announced a departure from "[t]he doctrine, of recent origin, that the Fourteenth Amendment precludes the taxation of any interest in the same intangible in more than one state . . . ."[1112] Taking cognizance of the fact that this doctrine had never been extended to the field of income taxation or consistently applied in the field of property taxation, the Court declared that a correct interpretation of constitutional requirements would dictate the following conclusions: "From the beginning of our constitutional system control over the person at the place of his domicile and his duty there, common to all citizens, to contribute to the support of government have been deemed to afford an adequate constitutional basis for imposing on him a tax on the use and enjoyment of rights in intangibles measured by their value. . . . But when the taxpayer extends his activities with respect to his intangibles, so as to avail himself of the protection and benefit of the laws of another state, in such a way as to bring his person or property within the reach of the tax gatherer there, the reason for a single place of taxation no longer obtains . . . . [However], the state of domicile is not deprived, by the taxpayer's activities elsewhere, of its constitutional jurisdiction to tax . . . ."[1113]
In accordance with this line of reasoning, the domicile of a decedent (Tennessee) and the state where a trust received securities conveyed from the decedent by will (Alabama) were both allowed to impose a tax on the transfer of these securities. "In effecting her purposes, the testatrix brought some of the legal interests which she created within the control of one state by selecting a trustee there and others within the control of the other state by making her domicile there. She necessarily invoked the aid of the law of both states, and her legatees, before they can secure and enjoy the benefits of succession, must invoke the law of both."[1114]
On the authority of Curry v. McCanless, the Court, in Pearson v. McGraw,[1115] sustained the application of an Oregon transfer tax to intangibles handled by an Illinois trust company, although the property was never physically present in Oregon. Jurisdiction to tax was viewed as dependent, not on the location of the property in the state, but on the fact that the owner was a resident of Oregon. In Graves v. Elliott,[1116] the Court upheld the power of New York, in computing its estate tax, to include in the gross estate of a domiciled decedent the value of a trust of bonds managed in Colorado by a Colorado trust company and already taxed on its transfer by Colorado, which trust the decedent had established while in Colorado and concerning which he had never exercised any of his reserved powers of revocation or change of beneficiaries. It was observed that "the power of disposition of property is the equivalent of ownership. It is a potential source of wealth and its exercise in the case of intangibles is the appropriate subject of taxation at the place of the domicile of the owner of the power. The relinquishment at death, in consequence of the non-exercise in life, of a power to revoke a trust created by a decedent is likewise an appropriate subject of taxation."[1117]
The costliness of multiple taxation of estates comprising intangibles can be appreciably aggravated if one or more states find that the decedent died domiciled within its borders. In such cases, contesting states may discover that the assets of the estate are insufficient to satisfy their claims. Thus, in Texas v. Florida,[1118] the State of Texas filed an original petition in the Supreme Court against three other states who claimed to be the domicile of the decedent, noting that the portion of the estate within Texas alone would not suffice to discharge its own tax, and that its efforts to collect its tax might be defeated by adjudications of domicile by the other states. The Supreme Court disposed of this controversy by sustaining a finding that the decedent had been domiciled in Massachusetts, but intimated that thereafter it would take jurisdiction in like situations only in the event that an estate was valued less than the total of the demands of the several states, so that the latter were confronted with a prospective inability to collect.
Corporate Privilege Taxes[edit | edit source]
A domestic corporation may be subjected to a privilege tax graduated according to paid-up capital stock, even though the stock represents capital not subject to the taxing power of the state, because the tax is levied not on property but on the privilege of doing business in corporate form.[1119] However, a state cannot tax property beyond its borders under the guise of taxing the privilege of doing an intrastate business. Therefore, a license tax based on the authorized capital stock of an out-of-state corporation is void,[1120] even though there is a maximum fee,[1121] unless the tax is apportioned based on property interests in the taxing state.[1122] On the other hand, a fee collected only once as the price of admission to do intrastate business is distinguishable from a tax and accordingly may be levied on an out-of-state corporation based on the amount of its authorized capital stock.[1123]
A municipal license tax imposed on a foreign corporation for goods sold within and without the state, but manufactured in the city, is not a tax on business transactions or property outside the city and therefore does not violate the Due Process Clause.[1124] But a state lacks jurisdiction to extend its privilege tax to the gross receipts of a foreign contracting corporation for fabricating equipment outside the taxing state, even if the equipment is later installed in the taxing state. Unless the activities that are the subject of the tax are carried on within its territorial limits, a state is not competent to impose such a privilege tax.[1125]
Individual Income Taxes[edit | edit source]
A state may tax annually the entire net income of resident individuals from whatever source received,[1126] as jurisdiction is founded upon the rights and privileges incident to domicile. A state may also tax the portion of a nonresident's net income that derives from property owned by him within its borders, and from any business, trade, or profession carried on by him within its borders.[1127] This state power is based upon the state's dominion over the property he owns, or over activity from which the income derives, and from the obligation to contribute to the support of a government that secures the collection of such income. Accordingly, a state may tax residents on income from rents of land located outside the state; from interest on bonds physically outside the state and secured by mortgage upon lands physically outside the state;[1128] and from a trust created and administered in another state and not directly taxable to the trustee.[1129] Further, the fact that another state has lawfully taxed identical income in the hands of trustees operating in that state does not necessarily destroy a domiciliary state's right to tax the receipt of income by a resident beneficiary.[1130]
Corporate Income Taxes and Foreign Corporations[edit | edit source]
A tax based on the income of a foreign corporation may be determined by allocating to the state a proportion of the total,[1131] unless the income attributed to the state is out of all appropriate proportion to the business transacted in the state.[1132] Thus, a franchise tax on a foreign corporation may be measured by income, not just from business within the state, but also on net income from interstate and foreign business.[1133] Because the privilege granted by a state to a foreign corporation of carrying on business supports a tax by that state, it followed that a Wisconsin privilege dividend tax could be applied to a Delaware corporation despite its having its principal offices in New York, holding its meetings and voting its dividends in New York, and drawing its dividend checks on New York bank accounts. The tax could be imposed on the "privilege of declaring and receiving dividends" out of income derived from property located and business transacted in Wisconsin, equal to a specified percentage of such dividends, the corporation being required to deduct the tax from dividends payable to resident and nonresident shareholders.[1134]
Insurance Company Taxes[edit | edit source]
A privilege tax on the gross premiums received by a foreign life insurance company at its home office for business written in the state does not deprive the company of property without due process,[1135] but such a tax is invalid if the company has withdrawn all its agents from the state and has ceased to do business there, merely continuing to receive the renewal premiums at its home office.[1136] Also violating due process is a state insurance premium tax imposed on a nonresident firm doing business in the taxing jurisdiction, where the firm obtained the coverage of property within the state from an unlicensed out-of-state insurer that consummated the contract, serviced the policy, and collected the premiums outside that taxing jurisdiction.[1137] However, a tax may be imposed upon the privilege of entering and engaging in business in a state, even if the tax is a percentage of the "annual premiums to be paid throughout the life of the policies issued." Under this kind of tax, a state may continue to collect even after the company's withdrawal from the state.[1138]
A state may lawfully extend a tax to a foreign insurance company that contracts with an automobile sales corporation in a third state to insure customers of the automobile sales corporation against loss of cars purchased through the automobile sales corporation, insofar as the cars go into the possession of a purchaser within the taxing state.[1139] On the other hand, a foreign corporation admitted to do a local business, which insures its property with insurers in other states who are not authorized to do business in the taxing state, cannot constitutionally be subjected to a 5% tax on the amount of premiums paid for such coverage.[1140] Likewise a Connecticut life insurance corporation, licensed to do business in California, which negotiated reinsurance contracts in Connecticut, received payment of premiums on such contracts in Connecticut, and was liable in Connecticut for payment of losses claimed under such contracts, cannot be subjected by California to a privilege tax measured by gross premiums derived from such contracts, notwithstanding that the contracts reinsured other insurers authorized to do business in California and protected policies effected in California on the lives of California residents. The tax cannot be sustained whether as laid on property, business done, or transactions carried on, within California, or as a tax on a privilege granted by that state.[1141]
Void for Vagueness[edit | edit source]
The Supreme Court has invalidated both federal and state criminal statutes that lack sufficient definiteness or specificity as "void for vagueness." Such legislation "may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused."[1142] A statute may also be unconstitutionally vague because the statute is worded in a standardless way that invites arbitrary enforcement or so broadly as to threaten constitutionally protected activity.
With respect to state and local actions, the Supreme Court has, for instance, voided for vagueness a state criminal law that subjects a "gangster" to fine or imprisonment, where neither common law nor the statute gave the words "gang" or "gangster" definite meaning;[1143] an ordinance that required police to disperse all persons in the company of "criminal street gang members" while in a public place with "no apparent purpose";[1144] and an ordinance that punished, among others, "persons wandering or strolling around from place without any lawful purpose or object."[1145]
Equal Protection[edit | edit source]
Race-Based Classifications Generally[edit | edit source]
Overview of Race-Based Classifications[edit | edit source]
When the government legislates or acts on the basis of a "suspect" classification, the Court sets aside the traditional standard of equal protection review and exercises a heightened standard of review referred to as "strict scrutiny."[1146] Paradigmatic of "suspect" categories is classification by race. Under the strict scrutiny standard, the government must demonstrate a compelling interest; usually little or no presumption favoring the classification is to be expected from courts. In addition, the government must demonstrate that its use or reliance on a racial classification is narrowly tailored to further that compelling interest.[1147] Both prongs of the Court's strict scrutiny standard involve the case-by-case analysis of multiple factors.
Before settling on strict scrutiny for evaluating racial classifications for equal protection purposes, the Supreme Court's jurisprudence on racial classifications went through significant change over the years. In its 1944 decision Korematsu v. United States,[1148] for example, the Court adjudicated the wartime forced removal of Japanese-Americans from the West Coast. In that case, the Court said that because government action targeted only a single ethnic-racial group it was "immediately suspect" and subject to "rigid scrutiny."[1149] In the context of striking down state laws prohibiting interracial marriage or cohabitation in the late 1960s, the Court stated in its 1967 decision Loving v. Virginia that racial classifications "bear a far heavier burden of justification" than other classifications and that these state laws were invalid because no "overriding statutory purpose"[1150] was shown and they were not necessary to some "legitimate overriding purpose."[1151]
Meanwhile, not all racial classifications harm a particular group, and the Justices debated which standard to apply to racial classifications motivated by a "benign" interest to help or assist a particular racial group. The Court ultimately concluded in its 1995 decision Adarand Constructors v. Pena, that one standard--strict scrutiny--applies to evaluate all racial classifications.[1152] Thus, government actions that use a racial classification to remedy or ameliorate conditions resulting from intentional discrimination must also undergo strict scrutiny.[1153]
Equal Protection and Rational Basis Review Generally[edit | edit source]
Every draft leading up to the final version of Section 1 of the Fourteenth Amendment contained a guarantee of equal protection of the laws.[1154] The Amendment's sponsors aimed to provide a firm constitutional basis for already-enacted civil rights legislation[1155] and to ensure that equal protection could not be repealed by a simple majority in a future Congress.[1156] There were, however, conflicting interpretations of the phrase "equal protection" among sponsors and supporters, and the legislative history does little to clarify whether any sort of consensus was accomplished, and if so, what it was.[1157] Although the Court early recognized that African Americans were the primary intended beneficiaries of the new constitutional protections thus adopted,[1158] the Amendment's language is not limited to any one racial or other group. Though efforts to argue for an expansive interpretation met with little initial success,[1159] the equal protection standard ultimately came to apply to all classifications by legislative and other official bodies. Now, the Equal Protection Clause looms large in the fields of civil rights and fundamental liberties with regard to differential treatment of persons and classes.
While the traditional standard of review for equal protection challenges to government classifications developed largely, though not entirely, in the context of economic regulation,[1160] it appears in many other contexts as well,[1161] including so-called "class-of-one" challenges to the government's alleged mistreatment of an individual.[1162] The mere fact of classification will not void legislation,[1163] because, in exercising its powers, a legislature has considerable discretion in recognizing differences between and among persons and situations.[1164] The Court has observed: "[S]tatutes create many classifications which do not deny equal protection; it is only 'invidious discrimination' which offends the Constitution."[1165]
To determine whether a classification is permissible or invidious courts must first identify the characteristic used to classify.[1166] For most classifications that do not involve an inherently suspect characteristic (such as sex or race) or a fundamental right (such as a personal constitutional right), the Court applies rational basis review.[1167] This standard generally differentiates between permissible and impermissible classifications by asking whether "the statute is rationally related to a legitimate state interest."[1168] Applying a presumption that legislation is valid, the Court has held that "[w]hen social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude."[1169] Recognizing that a classification may be overinclusive or underinclusive and pass rational basis review, the Court has stated: "If the classification has some reasonable basis, it does not offend the Constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality."[1170]
Marriage and Facially Non-Neutral Laws[edit | edit source]
Statutes that forbid the contracting of marriage between persons of different races are unconstitutional,[1171] as are statutes that penalize interracial cohabitation.[1172] Nor may a court deny custody of a child based on a parent's remarriage to a person of another race and the presumed "best interests of the child" to be free from the prejudice and stigmatization that might result.[1173]
Judicial System and Facially Non-Neutral Laws[edit | edit source]
Segregation in courtrooms is unlawful and may not be enforced through contempt citations for disobedience[1174] or through other means. Treatment of parties to or witnesses in judicial actions based on their race is impermissible.[1175] Jail inmates have a right not to be segregated by race unless there is some overriding necessity arising out of the process of keeping order.[1176]
Public Designation and Facially Non-Neutral Laws[edit | edit source]
It is unconstitutional to designate candidates on the ballot by race,[1177] and apparently, any sort of designation by race on public records is suspect, although not necessarily unlawful.[1178]
Public Accommodations and Facially Non-Neutral Laws[edit | edit source]
Whether discrimination practiced by operators of retail selling and service establishments gave rise to a denial of constitutional rights occupied the Court's attention considerably in the early 1960s, but it avoided finally deciding one way or the other, generally finding forbidden state action in some aspect of the situation.[1179] Passage of the Civil Rights Act of 1964 obviated any necessity to resolve the issue.[1180]
Political Process Doctrine[edit | edit source]
The Court has also analyzed equal protection challenges to voter referenda approving restrictions or prohibitions on methods of addressing racial segregation.[1181] In such cases, the Court must consider if a measure that changes how desegregation is implemented "distorts the political process for racial reasons."[1182] In a 1982 case, Washington v. Seattle School District, the Court addressed circumstances in which Washington voters, following the Seattle school board's implementation of a mandatory busing program to reduce the racial isolation of minority students, approved an initiative banning school boards from assigning students to any but the nearest or next nearest school offering the students' course of study. The voter initiative included many exceptions that allowed the school board to assign students beyond nearby schools for various reasons, but notably had no exception that allowed the school board to bus students for desegregation purposes.[1183] That same year, the Court addressed a California case, in which California state courts had interpreted the California constitution to require school systems to eliminate both de jure and de facto segregation. In that case, Crawford v. Los Angeles Board of Education, voters approved an initiative that prohibited state courts from ordering busing unless the school segregation violated the Fourteenth Amendment, and a federal judge would have power to order busing under Supreme Court precedent.[1184]
By a 5-4 margin, the Court held that the Washington measure was unconstitutional, but upheld the California measure with near unanimity of result if not of reasoning. The Court held that the Washington measure was unconstitutional because it imposed a different and more severe burden on school boards to address racial desegregation through busing than it imposed on any other educational policy.[1185] While local school boards could make education policy on a range of matters, they required state level approval to bus students for desegregation purposes.[1186] By imposing these greater burdens on school boards, the voters had expressly and knowingly enacted a law that had an intentional impact on a minority.[1187]
By contrast, the Court found no such racially discriminatory differences[1188] or motive in the California measure. There, the Court described the voter initiative as a simple repeal of a desegregation remedy that the federal Constitution did not require.[1189] "It would be paradoxical," the Court observed, "to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it."[1190] Having previously gone beyond the requirements of the federal Constitution, the Court concluded that the state was free to "pull back" to a standard that conformed to federal requirements.[1191] In addition, the lower court found no evidence indicating that voters were motivated by a discriminatory purpose in enacting the measure.[1192] "In sum," the Court stated, "the simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification."[1193] Concurring in the result, Justice Harry Blackmun, joined by Justice William Brennan, distinguished the California measure because it merely repealed "the right to invoke a judicial busing remedy."[1194] Because legislatures, and not courts, create laws, in his view the measure did not reallocate decision making authority in constitutionally meaningful way.[1195]
In its 2014 Schuette v. Coalition to Defend Affirmative Action decision,[1196] the Court considered the constitutionality of an amendment to the Michigan Constitution, approved by the state's voters, to prohibit admissions preferences at state universities based on race, color, ethnicity, national origin, or sex.[1197] Six Justices agreed that the Michigan amendment did not violate the Equal Protection Clause, but Schuette produced no majority opinion on the legal rationale for that conclusion.[1198] A three-Justice plurality of the Schuette Court construed its earlier precedent to invalidate state voter initiatives on equal protection grounds only where the state action "had the serious risk, if not purpose, of causing specific injuries on account of race."[1199] Finding no similar risks of injury with regard to the Michigan amendment and no similar allegations of past discrimination in the Michigan university system,[1200] the plurality ultimately concluded there was no basis to set aside the state amendment.[1201] The plurality opinion questioned and rejected aspects of the Court's analysis in Washington v. Seattle School District,[1202] while two other Justices argued that that decision, and Hunter v. Erickson, should be overturned in their entirety.[1203]
Peremptory Challenges[edit | edit source]
Following its 1880 Strauder v. West Virginia decision that a law that discriminates in selecting jurors based on their color violates the Fourteenth Amendment's Equal Protection Clause,[1204] the Court recognized that excluding a defendant's racial or ethnic group from the grand jury[1205] that indicts them or the petit jury[1206] that tries them, or from both,[1207] denies the defendant equal protection of the laws and requires reversing the conviction or dismissing the indictment.[1208] Even if the defendant's race differs from that of the excluded jurors, the Court has held, the defendant has third-party standing to assert the rights of jurors excluded on the basis of race.[1209] Indeed, people categorically excluded from jury service may seek affirmative relief to outlaw discrimination in the procedures a jurisdiction uses to call and qualify jurors, as the Court has held that "[d]efendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection."[1210] The Court has further noted that "[p]eople excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion."[1211]
A plaintiff can make out a prima facie case of deliberate and systematic exclusion by showing that no Black citizens have served on juries for a period of years[1212] or that the number of Black jurors who served was grossly disproportionate to the percentage of Black citizens eligible for jury service.[1213] Once this prima facie showing has been made, the Court has held that the burden is upon the jurisdiction to prove that it had not practiced discrimination and testimony by jury selection official that they did not discriminate is not sufficient.[1214] Although the Court, in cases with great racial disparities, has voided certain practices that facilitated discrimination,[1215] it has not outlawed discretionary jury selection pursuant to general standards of educational attainment and character that can be administered fairly.[1216] Similarly, the Court declined to rule that African Americans must be included on all-White jury commissions that administer jury selection laws in some states.[1217]
In its 1965 Swain v. Alabama decision,[1218] the Court examined a circumstance where African Americans regularly appeared on jury venires but no African American had actually served on a petite jury in fifteen years.[1219] The reason no Black jurors served in defendant's case, the Court found, was that attorneys used peremptory challenges--which allow them to remove a certain number of potential jurors without justification--to eliminate potential African American jurors.[1220] Nevertheless, the Court refused to set aside the conviction. The Court held the prosecution could use peremptory challenges to exclude African Americans in this particular case, regardless of motive, but indicated that consistent use of such challenges to remove African Americans across many cases would violate equal protection.[1221] Because the record did not show that the prosecution was solely responsible for African Americans' absence from the jury and suggested the defense requested some exclusions, the Court rejected the defendant's claims.[1222]
In Batson v. Kentucky, however, the Court overruled Swain's holding as to the evidentiary standard, ruling that "a defendant may establish a prima facie case of purposeful [racial] discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's [own] trial."[1223] To rebut this showing, the Court explained, the prosecutor "must articulate a neutral explanation related to the particular case," but the explanation "need not rise to the level justifying exercise of a challenge for cause."[1224] The Court further stated: "Although the prosecutor must present a comprehensible reason, '[t]he [rebuttal] does not demand an explanation that is persuasive, or even plausible'; so long as the reason is not inherently discriminatory, it suffices."[1225] After such a rebuttal, the Court noted: "the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating 'the persuasiveness of the justification' proffered by the prosecutor, but the 'ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.'"[1226] The Court also noted deference due to the trial court's determination of discriminatory intent, commenting: "On appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous."[1227]
Notably, on more than one occasion, the Supreme Court has reversed trial courts' findings of no discriminatory intent.[1228] Indeed, in post-Batson review, the Court has closely reviewed transcripts of jurors' pretrial voir dire questioning, applying a "comparative juror analysis."[1229] In this analysis, the Court considers the minority jurors the prosecution struck and the reasons it gave for each strike at the Batson hearing before trial.[1230] Then the Court will see if there were similar, White jurors the prosecution did not strike. Inconsistencies could show that the alleged race-neutral reasons for striking minority jurors are pretextual.[1231] The Court has also extended Batson to apply to racially discriminatory use of peremptory challenges by private litigants in civil litigation,[1232] and by a defendant in a criminal case,[1233] as peremptory challenges always encompass state action, and cannot be considered mere private conduct.[1234]
Discrimination in selecting grand jury foremen presents a closer question, the answer to which depends in part on the responsibilities of a foreman in the particular system challenged. Thus, the Court "assume[d] without deciding" that a judge's discrimination in selecting foremen for state grand juries would violate equal protection in a system in which the foreman served as a thirteenth voting juror and exercised significant powers.[1235] The Court did not reach the same result, however, in a decision on a due process challenge to the federal system, where the foreman's responsibilities were "essentially clerical" and where the judge chose the foreman from among the members of an already chosen jury.[1236]
In its 1987 decision McCleskey v. Kemp[1237] the Court rejected an equal protection claim based on statistical evidence of systemic racial discrimination in sentencing, declining to extend the jury selection rules. The defendant, a Black man who received a death sentence after being convicted for murdering a White victim, presented a statistical study showing that defendants charged with murdering White people were more than four times likely to receive a death sentence in the state than defendants charged with killing Black people.[1238] The Court distinguished Batson v. Kentucky by characterizing capital sentencing as "fundamentally different" from jury venire selection; consequently, relying on statistical proof of discrimination is less appropriate.[1239] The Court stated: "Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused."[1240] Also, the Court noted, there is not the same opportunity to rebut a statistical inference of discrimination because jurors deciding sentencing issues may not be required to testify to their motives unlike attorneys selecting jurors.[1241]
Segregation in Education[edit | edit source]
Brown v. Board of Education[edit | edit source]
Cases decided soon after ratification of the Fourteenth Amendment may be read as precluding any state-imposed distinction based on race,[1242] but the Court in Plessy v. Ferguson[1243] adopted a principle first propounded in litigation attacking racial segregation in the schools of Boston, Massachusetts.[1244] Plessy concerned not schools but a state law requiring "equal but separate" facilities for rail transportation and requiring the separation of "white and colored" passengers. "The object of the [Fourteenth] [A]mendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in exercise of their police power."[1245] The Court observed that a common instance of this type of law was the separation by race of children in school, which had been upheld, it was noted, "even by courts of states where the political rights of the colored race have been longest and most earnestly enforced."[1246]
Subsequent cases following Plessy that actually concerned school segregation did not expressly question the doctrine and the Court's decisions assumed its validity. It held, for example, that a Chinese student was not denied equal protection by being classified with African Americans and sent to school with them rather than with white students,[1247] and it upheld the refusal of an injunction to require a school board to close a White high school until it opened a high school for African Americans.[1248] And no violation of the Equal Protection Clause was found when a state law prohibited a private college from teaching White and Black students together.[1249]
In 1938, the Court began to move away from "separate but equal." It held that a state that operated a law school open to White students only violated a Black applicant's right to equal protection, even though the state offered to pay his tuition at an out-of-state law school. The requirement of the clause was for equal facilities within the state.[1250] When Texas established a law school for African Americans after the plaintiff had applied and been denied admission to the school maintained for Whites, the Court held the action to be inadequate, finding that the nature of law schools and the associations possible in the White school necessarily meant that the separate school was unequal.[1251] Equally objectionable was the fact that when Oklahoma admitted an African American law student to its only law school it required him to remain physically separate from the other students.[1252]
"Separate but equal" was formally abandoned in Brown v. Board of Education,[1253] which involved challenges to segregation per se in the schools of four states in which the lower courts had found that the schools provided were equalized or were in the process of being equalized. Though the Court had asked for argument on the intent of the framers, extensive research had proved inconclusive, and the Court asserted that it could not "turn the clock back to 1867. . . or even to 1896," but must rather consider the issue in the context of the vital importance of education in 1954. The Court reasoned that denial of opportunity for an adequate education would often be a denial of the opportunity to succeed in life, that separation of the races in the schools solely on the basis of race must necessarily generate feelings of inferiority in the disfavored race adversely affecting education as well as other matters, and therefore that the Equal Protection Clause was violated by such separation. "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."[1254]
After hearing argument on what remedial order should issue, the Court remanded the cases to the lower courts to adjust the effectuation of its mandate to the particularities of each school district. "At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis." The lower courts were directed to "require that the defendants make a prompt and reasonable start toward full compliance," although "[o]nce such a start has been made," some additional time would be needed because of problems arising in the course of compliance and the lower courts were to allow it if on inquiry delay were found to be "in the public interest and [to be] consistent with good faith compliance . . . to effectuate a transition to a racially nondiscriminatory school system." In any event, however, the lower courts were to require compliance "with all deliberate speed."[1255]
Aftermath of Brown v. Board of Education[edit | edit source]
Following its decisions in Brown I and II, the Supreme Court addressed numerous states' and localities' refusals to comply with its mandates. Four years after Brown I, for example, the Court in Cooper v. Aaron described various actions taken by Arkansas state authorities, including amending the state constitution to direct the Arkansas state legislature to "oppose" the Supreme Court's Brown decisions.[1256] The issue before the Court in Cooper concerned the first stage of an Arkansas local school board's desegregation plan--admitting nine Black students to a high school of over 2,000 students in Little Rock, Arkansas.[1257] The Governor had ordered the Arkansas National Guard to block their attendance,[1258] and after the Guard withdrew under court order, the President of the United States sent federal troops to facilitate the admission of the nine students in late September of 1957.[1259] Following these actions, the local school board petitioned to postpone all further steps to desegregate and withdraw the Black students already admitted to the high school,[1260] pointing to the continued public hostility which the school board alleged had been provoked by other state authorities.[1261] A unanimous Supreme Court affirmed the lower court's denial of that petition,[1262] stating: "The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature."[1263]
While racial segregation in public education is commonly associated with K-12 schools, numerous public institutions of higher education--such as public colleges, law schools, and doctoral programs--had White-only admissions policies that barred Black students from matriculating solely because of their race.[1264] After Brown, the Court weighed in on circumstances like those in Cooper v. Aaron in the higher education context as well, this time involving the state legislature and Governor of Mississippi's efforts to block the admission of the first Black student to the University of Mississippi.[1265] Ultimately, the University admitted the student, James Meredith, upon federal court order, under the escort of United States Marshals.[1266]
In addition to cases involving public confrontation by state authorities, the Supreme Court, in the early 1960s,[1267] also ruled on various other state and local practices designed to evade or delay school desegregation, such as school closings[1268] and minority transfer plans.[1269] Numerous jurisdictions also adopted "pupil placement laws," which automatically reassigned students to the segregated school they had previously attended, unless a state entity changed that assignment at its discretion.[1270] While some lower courts had held that parents and students could not challenge such practices in federal court unless they had exhausted state law procedures,[1271] the Supreme Court rejected such arguments.[1272] "The right alleged," the Court explained, "is as plainly federal in origin and nature as those vindicated in Brown v. Board of Education," and not "in any way entangled in a skein of state law that must be untangled before the federal case can proceed."[1273]
Various jurisdictions also implemented "freedom of choice" plans[1274] which generally provided that each child in a school district could choose which school to attend each year. In its 1968 decision Green v. School Board of New Kent County,[1275] the Court addressed whether a Virginia county school district's "freedom of choice" plan was sufficient to satisfy the mandate of Brown II.[1276] The county's two schools--one formerly designated only for White students and the other for Black students[1277]--remained segregated by race through 1964.[1278] Under the county's 1965 "freedom of choice" plan, each student chose between those two schools each year, and if no choice was made, students were assigned to the school previously attended.[1279] The school board argued that its plan satisfied its constitutional obligations, and asserted that for the Court to rule otherwise would read the Fourteenth Amendment to require "compulsory integration."[1280] The Court rejected that argument as "ignor[ing] the thrust of Brown II," which requires "the dismantling of well-entrenched dual systems."[1281] Brown II, the Court stated, "clearly charged [public entities] with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch."[1282] Emphasizing the county's "deliberate perpetuation" of a racially segregated school system well after its Brown decisions,[1283] the Court concluded that the county's plan "cannot be accepted as a sufficient step" to transition to a unitary school system[1284] and held that a "freedom of choice" plan "is not an end in itself" in the context dismantling a dual school system.[1285] In the three years under the county's plan, the Court further observed that the system remained racially segregated and "burden[ed] children and their parents with a responsibility which Brown II placed squarely on the School Board."[1286] The Court ordered the Board to create a new plan and "fashion steps which promise realistically to convert promptly to a system without a 'white' school and a 'Negro' school, but just schools."[1287] The Court in other cases further held that school desegregation encompassed not only eliminating dual systems as they relate to student assignments, but also the merging of faculty,[1288] staff, and services into one system.[1289]
Implementing School Desegregation[edit | edit source]
Following its 1968 decision Green v. County School Board of New Kent County,[1290] the Court continued to encounter school districts' refusals to comply with its Brown decisions.[1291] In another case involving the forty-third largest school system in the United States at the time, the Court thus undertook to define "in more precise terms" the duty of school authorities and federal courts to implement "Brown I and the mandate to eliminate dual systems and establish unitary systems at once."[1292] Observing that lower courts "have struggled in hundreds of cases with a multitude and variety of problems" to implement its directives,[1293] the Court in its 1971 decision Swann v. Charlotte-Mecklenburg Board of Education sought to address "with more particularity the responsibilities of school authorities in desegregating a state-enforced dual school system in light of the Equal Protection Clause."[1294]
In Charlotte-Mecklenburg, the Court stated that the "first remedial responsibility of school authorities is to eliminate invidious racial distinctions"--not only in student assignment, but also in other areas such as transportation, faculty and staff, extracurricular activities, building maintenance and equipment.[1295] The Court emphasized that apart from the racial composition of a school's student body, if it is "possible to identify a 'white school' or a 'Negro school' simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities," such features were indicative that a school district had failed to satisfy its constitutional obligations to dismantle its dual system and continued to deprive Black students of their rights to equal protection.[1296] Although "the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law,"[1297] where a proposed desegregation plan "contemplates the continued existence" of such schools, school authorities must "satisfy the court that their racial composition is not the result of present or past discriminatory action on their part."[1298]
When school authorities fail in their obligations to dismantle state-sponsored racial segregation, the Court has held that a district court has "broad power to fashion a remedy that will assure a unitary school system,"[1299] with "the nature of the violation determin[ing] the scope of the remedy."[1300] For "a system that has been deliberately constructed and maintained to enforce racial segregation," the Court explained, a court may, and sometimes must, order race-based student assignments to desegregate.[1301] As the Court elaborated in a subsequent case, McDaniel v. Barresi,[1302] "steps will almost invariably require that students be assigned 'differently because of their race'" in this remedial context, as "[a]ny other approach would freeze the status quo that is the very target of all desegregation processes."[1303]
The Court in Charlotte-Mecklenburg specifically laid out several methods for undoing dual systems, such as set ratios for redistributing faculty and students to desegregated schools,[1304] the race-conscious redrawing of school districts and attendance zones,[1305] considering desegregation in new school construction,[1306] and transporting students through busing.[1307] Considering faculty reassignments, the Court rejected arguments "that the Constitution prohibits district courts from using their equity power to order assignment of teachers to achieve a particular degree of faculty desegregation"[1308] and upheld a district court order setting a minimum ratio of Black to White faculty assigned to each school.[1309] The Court similarly upheld a court-ordered minimum ratio of Black to White students in various schools, describing the district court's use of ratios in that case as "no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement."[1310] The Court also emphasized that the district court's remedy came after the local authorities had undisputedly continued their dual school system at least fifteen years after the Court's Brown decision,[1311] and "had totally defaulted" in presenting "an acceptable [desegregation] plan."[1312] If the district court, however, had required, "as a matter of substantive constitutional right, any particular degree of racial balance or mixing," the Court observed that it would have reversed such an order, as the constitutional requirement to dismantle dual systems "does not mean that every school in every community must always reflect the racial composition of the school system as a whole."[1313]
The Court in Charlotte-Mecklenburg also held that courts and school authorities not only may, but sometimes must, alter attendance boundaries and group or pair noncontiguous school attendance zones to desegregate dual systems and undo past official action.[1314] Describing the "gerrymandering of school districts and attendance zones" as "one of the principal tools" to break up a dual system, the Court acknowledged that while the zones "are neither compact nor contiguous," such "awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems."[1315] Transporting students to and from school through busing is also a permissible tool of educational and desegregation policy, particularly in circumstances such as those in Swann where assigning children "to the school nearest their home . . . would not produce an effective dismantling of the dual system."[1316] Discussing specific features of the busing plan ordered by the district court in Swann, the Court upheld the lower court's remedial decree, stating that "[d]esegregation plans cannot be limited to the walk-in school." [1317] More generally, the Court stated that when valid objections are raised to transporting students, such as when "the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process," lower courts must "weigh the soundness of any transportation plan" in light of various factors including other features of the desegregation plan at issue.[1318]
Finally, the Court stated, neither "school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system."[1319]
Scope of Remedial Desegregation Orders and Ending Court Supervision[edit | edit source]
Following Swann v. Charlotte-Mecklenburg Board of Education, the Court addressed other legal challenges to district court desegregation orders, and continued to affirm the broad authority of federal courts to order remedial actions[1320] while also modifying or reversing court orders that it found were unwarranted or excessive given the evidence at issue.[1321] In Milliken v. Bradley,[1322] for example, the Court set aside a court-ordered desegregation plan spanning the city of Detroit and fifty-three adjacent suburban school districts. The Court held that such a broad remedy could only be implemented to cure an interdistrict constitutional violation if state officials and officials in those suburban school districts were responsible, at least in part, for the segregation between the districts, through either discriminatory actions affecting the larger Detroit area or constitutional violations within one of the school districts that had produced a substantial segregative effect in another district.[1323] The Court in Milliken found the evidence insufficient to support an interdistrict remedy in that case.[1324] The Court stated: "[W]ithout an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy".[1325]
Especially during the 1970s, courts and Congress grappled with the appropriateness of various remedies for de jure, or state-sanctioned, racial separation in public schools across the country. Among these remedial methods, busing created a great amount of controversy, though the Court in Charlotte-Mecklenburg sanctioned it as a permissible desegregation tool.[1326] Around that time, Congress enacted several provisions, either permanent statutes or annual appropriations limits, attempting to restrict the power of federal courts and administrative agencies to order or to require busing, but these proved largely ineffectual.[1327] Stronger proposals, for statutes or for constitutional amendments, were introduced in Congress, but none were enacted.[1328]
With many desegregation decrees in operation across the country, the Court also considered how a school district must comply to free itself of continuing court supervision. In a 1991 case involving Oklahoma City public schools, the Court in Oklahoma City Board of Education v. Dowell[1329] stated that a desegregation decree may be lifted upon a showing that the purposes of the litigation have been "fully achieved"--that is, that the school district has been operating "in compliance with the commands of the Equal Protection Clause" "for a reasonable period of time," and that it is "unlikely" to return to its former violations.[1330] The Court instructed that a lower court assessing whether to lift a desegregation order "should look not only at student assignments, but 'to every facet of school operations--faculty, staff, transportation, extra-curricular activities and facilities.'"[1331] On remand, the trial court was directed to determine "whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past [de jure] discrimination had been eliminated to the extent practicable."[1332]
The Court also held that a federal court may incrementally withdraw its supervision over a school district upon a showing of compliance in particular areas of the system, such as student assignment and physical facilities, while retaining jurisdiction over other areas in which the system had not demonstrated full compliance. In its 1992 decision Freeman v. Pitts,[1333] the Court stated that a federal court "has the discretion to order an incremental or partial withdrawal of its supervision and control,"[1334] and may "relinquish supervision and control of school districts in incremental stages, before full compliance has been achieved in every area of school operations."[1335]
Remaining Vestiges of Unconstitutional Racial Segregation[edit | edit source]
Public institutions of higher education were also segregated by race, and the Court addressed desegregation efforts in that context as well. In its 1992 decision United States v. Fordice,[1336] the Court determined that Mississippi had not, by adopting race-neutral admissions policies, eliminated all vestiges of its prior de jure, racially segregated higher education system.[1337] The Court held that the Equal Protection Clause requires that a state, to the extent practicable and consistent with sound educational practices, must eradicate policies and practices that are traceable to its dual system and that continue to have segregative effects.[1338] The Court identified several surviving aspects of Mississippi's prior dual system that were constitutionally suspect and that had to be justified or eliminated, including the widespread duplication of programs throughout the public university system, which was a remnant of the dual "separate-but-equal" system; institutional mission classifications that made three formerly White-only schools and no formerly Black-only schools the flagship "comprehensive" universities with the most expansive academic offerings; and the retention and operation of all eight schools rather than the possible merger of some.[1339]
Segregation in Other Contexts[edit | edit source]
Overview of Segregation in Other Contexts[edit | edit source]
While school desegregation cases are perhaps the best known examples of the Supreme Court's treatment of racial segregation under the Equal Protection Clause, the Court has struck down forced separation based on race in many other contexts. Indeed, the Court struck down several segregation laws before its landmark 1954 decision in Brown v. Board of Education, which effectively brought to a close the "separate but equal" precedent the Court had established in its 1896 decision Plessy v. Ferguson.[1340] In most of these racial segregation cases, the parties disputed whether various levels of state involvement in private discrimination amounted to state action.
Housing and Segregation[edit | edit source]
In the housing context, the Court addressed legal challenges to city ordinances, private covenants, and state constitutional amendments that imposed various racial restrictions. In 1917, for example, the Court in Buchanan v. Warley[1341] invalidated an ordinance that prohibited "colored people" from occupying houses in blocks where the greater number of houses were occupied by any "white person," and prohibited "white people" from living on blocks where the greater number of houses were occupied by "colored people." The Court declined to apply Plessy v. Ferguson because, in Buchanan, the statute barred the plaintiff landowner from living on his property.[1342] While it had approved the doctrine of "separate but equal" treatment of racial minorities in transportation and education, the Court said, the Fourteenth Amendment would not allow the state to interfere with property rights based on race.[1343] In 1948, the Court extended Buchanan to invalidate restrictive covenants--private title conditions that barred property transfer based on race. The Court held that although these private arrangements did not themselves violate the Equal Protection Clause, the judicial enforcement of them, either by injunctive relief or through damage actions, did.[1344]
In its 1967 case, Reitman v. Mulkey,[1345] the Court again considered potential state involvement in private housing discrimination. It reviewed the referendum passage of a California state constitutional amendment that repealed a "fair housing" law and declared that a property seller could turn away any buyer for any reason. The Court held the amendment unconstitutional, pointing out that it aimed to repeal anti-discrimination measures and "intended to authorize, and does authorize, racial discrimination in the housing market."[1346] The Court acknowledged it had no "infallible test" for determining when state involvement in private discrimination was unconstitutional.[1347] But, deferring to the state supreme court decision invalidating the amendment, it agreed that this provision effectively immunized private discrimination. "Those practicing racial discriminations need no longer rely solely on their personal choice," the Court noted. "They could now invoke express constitutional authority . . ."[1348] In contrast, the Court, in its 1971 decision James v. Valtierra, held that a California constitutional requirement singling out low-rent housing projects for special referendum approval did not violate the Equal Protection Clause.[1349] The Court did not see the measure as drawing any racial distinctions, ruling that it was race-neutral in its terms and not racially motivated.[1350] The Court has also held that provision of publicly assisted housing must be nondiscriminatory, ordering the federal Department of Housing and Urban Development to remedy segregative practices.[1351]
Transportation and Segregation[edit | edit source]
In 1896, the Supreme Court endorsed the "separate but equal" doctrine in the transportation context in Plessy v. Ferguson,[1352] but after the Court dismissed the doctrine's applicability in education in Brown v. Board of Education, the Court revisited the doctrine in transportation.[1353] Even before Brown, the Court had found that a state statute that permitted carriers to provide sleeping and dining cars for White persons only violated equal protection;[1354] held that a carrier's provision of unequal, or nonexistent, first class accommodations to Black travelers violated the Interstate Commerce Act;[1355] and voided state-required segregation on interstate carriers as a burden on commerce.[1356] In 1960, the Court in Boynton v. Virginia overturned a trespass conviction of an interstate Black bus passenger who had refused to leave a restaurant.[1357] The Court determined that the restaurant, essential to the facilities devoted to interstate commerce, fell under the Interstate Commerce Act.
Public Facilities and Segregation[edit | edit source]
Beginning in the 1950s, the Court also struck down the segregation of publicly provided or supported facilities and functions, summarily vacating and remanding a long series of cases for reconsideration under Brown.[1358] In 1963, the Court held segregated courtroom seating a "manifest violation" of equal protection.[1359] That same year, the Court held that neither expense nor potential public unrest warranted granting Memphis more time for "gradual desegregation" of its parks.[1360] It also held that a municipality could not operate a racially segregated park, even though a private party, in bequeathing the park to the city, had imposed a Whites-only rule.[1361] As the Court saw it, "[c]onduct that is formally 'private' may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action."[1362] Such was the case with the park, which the city maintained even after private trustees were appointed.[1363] Rather than desegregate the park, however, the Court ruled that a state court could hold that the trust had failed and hand the park over to the decedent's heirs.[1364] Similarly, the Court held in 1971 that a municipality under court order to desegregate its publicly owned swimming pools could comply by closing the pools instead, so long as it completely stopped operating them.[1365]
Private Businesses and Segregation[edit | edit source]
While the Constitution does not reach private discrimination, the Court will act if "to some significant extent the State in any of its manifestations has been found to have become involved in it."[1366] After Brown, the Court decided several cases finding state participation in segregating private businesses. Thus, the Court reversed trespass convictions for Black boys and girls who sat at a "Whites only" lunch counter, given that a city ordinance required separate dining facilities.[1367] Extending this holding, the Court reversed convictions of patrons who refused a manager's instructions to leave a "Whites only" restaurant, noting that the Florida state board of health required racially separate toilet facilities in restaurants.[1368] Even though Florida did not explicitly bar integrated dining spaces, the Court held that the segregation regulations "embody a state policy putting burdens upon any restaurant which serves both races, burdens bound to discourage the serving of the two races together."[1369] This degree of state involvement violated equal protection. So did New Orleans city officials' statements, even with no ordinance or regulation, that they would not tolerate "sit-in demonstrations."[1370] Based on this official endorsement of local segregation customs, the Court overturned convictions for Black patrons who refused a manager's order to leave a segregated lunch counter.[1371] The Court also found state action, and a constitutional violation, when a Delaware restaurant leasing city property refused to serve a Black patron.[1372] The Court held that the state, "[b]y its inaction" in permitting discriminatory uses of its property, "has not only made itself a party to the refusal of service, but has elected to place its power, property and prestige behind the admitted discrimination."[1373]
Facially Non-Neutral Laws Benefiting Racial Minorities[edit | edit source]
Early Doctrine on Appropriate Scrutiny[edit | edit source]
Of critical importance in equal protection litigation is the degree to which government is permitted to take race or another suspect classification into account when formulating and implementing a remedy to overcome the effects of past discrimination. Often the issue is framed in terms of "reverse discrimination," in that the governmental action deliberately favors members of one class and consequently may adversely affect nonmembers of that class.[1374] Although the Court had previously accepted the use of suspect criteria such as race to formulate remedies for specific instances of past discrimination[1375] and had allowed preferences for members of certain non-suspect classes that had been the object of societal discrimination,[1376] it was not until the late 1970s that the Court gave plenary review to programs that expressly used race as the primary consideration for awarding a public benefit.[1377]
In United Jewish Organizations v. Carey,[1378] New York State had drawn a plan that consciously used racial criteria to create districts with "nonwhite" populations in order to comply with the Voting Rights Act and to obtain the United States Attorney General's approval for a redistricting law. These districts were drawn large enough to permit the election of nonwhite candidates in spite of the lower voting turnout of nonwhite citizens. In the process a Hasidic Jewish community previously located entirely within one senate and one assembly district was divided between two senate and two assembly districts, and members of that community sued, alleging that the value of their votes had been diluted solely for the purpose of achieving a racial quota. The Supreme Court approved the districting, although the fragmented majority of seven concurred in no majority opinion.[1379]
Justice Byron White, delivering the judgment of the Court, based the result on alternative grounds. First, because the redistricting took place pursuant to the administration of the Voting Rights Act, Justice Byron White argued that compliance with the Act necessarily required states to be race conscious in the drawing of lines so as not to dilute minority voting strength. Justice Byron White noted that this requirement was not dependent upon a showing of past discrimination and that the states retained discretion to determine just what strength minority voters needed in electoral districts in order to assure their proportional representation. Moreover, the creation of the certain number of districts in which minorities were in the majority was reasonable under the circumstances.[1380]
Second, Justice Byron White wrote that, irrespective of what the Voting Rights Act may have required, what the state had done did not violate either the Fourteenth or the Fifteenth Amendment. This was so because the plan, even though it used race in a purposeful manner, represented no racial slur or stigma with respect to White citizens or any other race; the plan did not operate to minimize or unfairly cancel out white voting strength, because as a class White citizens would be represented in the legislature in accordance with their proportion of the population in the jurisdiction.[1381]
It was anticipated that Regents of the University of California v. Bakke[1382] would shed further light on the constitutionality of affirmative action. Instead, the Court again fragmented. In Bakke, the Davis campus medical school admitted 100 students each year. Of these slots, the school set aside sixteen of those seats for disadvantaged minority students, who were qualified but not necessarily as qualified as those winning admission to the other eighty-four places. Twice denied admission, Bakke sued, arguing that had the sixteen positions not been set aside he could have been admitted. The state court ordered him admitted and ordered the school not to consider race in admissions. By two 5-4 votes, the Supreme Court affirmed the order admitting Bakke but set aside the order forbidding the consideration of race in admissions.[1383]
Four Justices, in an opinion by Justice William Brennan, argued that racial classifications designed to further remedial purposes were not foreclosed by the Constitution under appropriate circumstances. Even ostensibly benign racial classifications, however, could be misused and produce stigmatizing effects; therefore, they must be searchingly scrutinized by courts to ferret out these instances. But benign racial preferences, unlike invidious discriminations, need not be subjected to strict scrutiny; instead, an intermediate scrutiny would do. As applied, then, this review would enable the Court to strike down a remedial racial classification that stigmatized a group, that singled out those least well represented in the political process to bear the brunt of the program, or that was not justified by an important and articulated purpose.[1384]
Justice Lewis Powell, however, argued that all racial classifications are suspect and require strict scrutiny. Because none of the justifications asserted by the college met this high standard of review, he would have invalidated the program. But he did perceive justifications for a less rigid consideration of race as one factor among many in an admissions program; diversity of student body was an important and protected interest of an academy and would justify an admissions set of standards that made affirmative use of race. Ameliorating the effects of past discrimination would justify the remedial use of race, the Justice thought, when the entity itself had been found by appropriate authority to have discriminated, but the college could not inflict harm upon other groups in order to remedy past societal discrimination.[1385] Justice Lewis Powell thus agreed that Bakke should be admitted, but he joined the four justices who sought to allow the college to consider race to some degree in its admissions.[1386]
The Court then began a circuitous route toward disfavoring affirmative action, at least when it occurs outside the education context. At first, the Court seemed inclined to extend the result in Bakke. In Fullilove v. Klutznick,[1387] the Court, still lacking a majority opinion, upheld a federal statute requiring that at least 10% of public works funds be set aside for minority business enterprises. A series of opinions by six Justices all recognized that alleviation and remediation of past societal discrimination was a legitimate goal and that race was a permissible classification to use in remedying the present effects of past discrimination. Chief Judge Burger issued the judgment, which emphasized Congress's preeminent role under the Commerce Clause and the Fourteenth Amendment to determine the existence of past discrimination and its continuing effects and to implement remedies that were race conscious in order to cure those effects. The principal concurring opinion by Justice Thurgood Marshall applied the Brennan analysis in Bakke, using middle-tier scrutiny to hold that the race conscious set-aside was "substantially related to the achievement of the important and congressionally articulated goal of remedying the present effects of past discrimination."[1388]
Taken together, the opinions established that, although Congress had the power to make the findings that will establish the necessity to use racial classifications in an affirmative way, these findings need not be extensive nor express and may be collected in many ways.[1389] Moreover, although the opinions emphasized the limited duration and magnitude of the set-aside program, they appeared to attach no constitutional significance to these limitations, thus leaving open the way for programs of a scope sufficient to remedy all the identified effects of past discrimination.[1390] But the most important part of these opinions rested in the clear sustaining of race classifications as permissible in remedies and in the approving of some forms of racial quotas. The Court rejected arguments that minority beneficiaries of such programs are stigmatized, that burdens are placed on innocent third parties, and that the program is overinclusive, so as to benefit some minority members who had suffered no discrimination.[1391]
Despite these developments, the Court remained divided in its response to constitutional challenges to affirmative action plans.[1392] As a general matter, authority to apply racial classifications was found to be at its greatest when Congress was acting pursuant to Section 5 of the Fourteenth Amendment or other of its remedial powers, or when a court is acting to remedy proven discrimination. But a countervailing consideration was the impact of such discrimination on disadvantaged non-minorities. Two cases illustrate the latter point. In Wygant v. Jackson Board of Education,[1393] the Court invalidated a provision of a collective bargaining agreement giving minority teachers a preferential protection from layoffs. In United States v. Paradise,[1394] the Court upheld as a remedy for past discrimination a court-ordered racial quota in promotions. Justice Byron White, concurring in Wygant, emphasized the harsh, direct effect of layoffs on affected non-minority employees.[1395] By contrast, a plurality of Justices in Paradise viewed the remedy in that case as affecting non-minorities less harshly than did the layoffs in Wygant, because the promotion quota would merely delay promotions of those affected, rather than cause the loss of their jobs.[1396]
Modern Doctrine on Appropriate Scrutiny[edit | edit source]
A clear distinction was then drawn between federal and state power to apply racial classifications. In City of Richmond v. J.A. Croson Co.,[1397] the Court invalidated a minority set-aside requirement that holders of construction contracts with the City subcontract at least 30% of the dollar amount to minority business enterprises. Applying strict scrutiny, the Court found Richmond's program to be deficient because it was not tied to evidence of past discrimination in the City's construction industry. By contrast, the Court in Metro Broadcasting, Inc. v. FCC[1398] applied a more lenient standard of review in upholding two racial preference policies used by the FCC in the award of radio and television broadcast licenses. The FCC policies, the Court explained, are "benign, race-conscious measures" that are "substantially related" to the achievement of an "important" governmental objective of broadcast diversity.[1399]
In Croson, the Court ruled that the City had failed to establish a "compelling" interest in the racial quota system because it failed to identify past discrimination in its construction industry. Mere recitation of a "benign" or remedial purpose will not suffice, the Court concluded, nor will reliance on the disparity between the number of contracts awarded to minority firms and the minority population of the city. "[W]here special qualifications are necessary, the relevant statistical pool for purposes of demonstrating exclusion must be the number of minorities qualified to undertake the particular task."[1400] The Court also said that because the ordinance defined "minority group members" to include "citizens of the United States who are Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts," this expansive definition "impugn[ed] the city's claim of remedial motivation," there having been "no evidence" of any past discrimination against non-Black racial minorities in the Richmond construction industry.[1401] It followed that Richmond's set-aside program also was not "narrowly tailored" to remedy the effects of past discrimination in the city: an individualized waiver procedure made the quota approach unnecessary, and a minority entrepreneur "from anywhere in the country" could obtain an absolute racial preference.[1402]
At issue in Metro Broadcasting were two minority preference policies of the FCC, one recognizing an "enhancement" for minority ownership and participation in management when the FCC considers competing license applications, and the other authorizing a "distress sale" transfer of a broadcast license to a minority enterprise. These racial preferences--unlike the set-asides at issue in Fullilove--originated as administrative policies rather than statutory mandates. Because Congress later endorsed these policies, however, the Court was able to conclude that they bore "the imprimatur of longstanding congressional support and direction."[1403]
Metro Broadcasting was noteworthy for several other reasons as well. The Court rejected the dissent's argument--seemingly accepted by a Croson majority--that Congress's more extensive authority to adopt racial classifications must trace to Section 5 of the Fourteenth Amendment, and instead ruled that Congress also may rely on race-conscious measures in exercise of its commerce and spending powers.[1404] This meant that the governmental interest furthered by a race-conscious policy need not be remedial, but could be a less focused interest such as broadcast diversity. Secondly, as noted above, the Court eschewed strict scrutiny analysis: the governmental interest need only be "important" rather than "compelling," and the means adopted need only be "substantially related" rather than "narrowly tailored" to furthering the interest.
The distinction between federal and state power to apply racial classifications, however, proved ephemeral. The Court ruled in Adarand Constructors, Inc. v. Pena[1405] that racial classifications imposed by federal law must be analyzed by the same strict scrutiny standard that is applied to evaluate state and local classifications based on race. The Court overruled Metro Broadcasting and, to the extent that it applied a review standard less stringent than strict scrutiny, Fullilove v. Klutznick. Strict scrutiny is to be applied regardless of the race of those burdened or benefited by the particular classification; there is no intermediate standard applicable to "benign" racial classifications. The underlying principle, the Court explained, is that the Fifth and Fourteenth Amendments protect persons, not groups. It follows, therefore, that classifications based on the group characteristic of race "should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection . . . has not been infringed."[1406]
By applying strict scrutiny, the Court was in essence affirming Justice Lewis Powell's individual opinion in Bakke, which posited a strict scrutiny analysis of affirmative action. There remained the question, however, whether Justice Lewis Powell's suggestion that creating a diverse student body in an educational setting was a compelling governmental interest that would survive strict scrutiny analysis. It engendered some surprise, then, that the Court essentially reaffirmed Justice Lewis Powell's line of reasoning in the cases of Grutter v. Bollinger[1407] and Gratz v. Bollinger.[1408]
In Grutter, the Court considered the admissions policy of the University of Michigan Law School, which requires admissions officials to evaluate each applicant based on all the information available in their file (for example, grade point average, Law School Admissions Test score, personal statement, recommendations) and on "soft" variables (for example, strength of recommendations, quality of undergraduate institution, difficulty of undergraduate courses). The policy also considered "racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans . . . ." Although, the policy did not limit the seeking of diversity to "ethnic and racial" classifications, it did seek a "critical mass" of minorities so that those students would not feel isolated.[1409]
The Grutter Court found that student diversity provided significant benefits, not just to the students who might have otherwise not been admitted, but also to the student body as a whole. These benefits include "cross-racial understanding," the breakdown of racial stereotypes, the improvement of classroom discussion, and the preparation of students to enter a diverse workforce. Further, the Court emphasized the role of education in developing national leaders. Thus, the Court found that such efforts were important to "cultivate a set of leaders with legitimacy in the eyes of the citizenry."[1410] As the university did not rely on quotas, but rather relied on "flexible assessments" of a student's record, the Court found that the university's policy was narrowly tailored to achieve the substantial governmental interest of achieving a diverse student body.[1411]
The law school's admission policy in Grutter, however, can be contrasted with the university's undergraduate admission policy. In Gratz, the Court evaluated the undergraduate program's "selection index," which assigned applicants up to 150 points based on a variety of factors similar to those considered by the law school. Applicants with scores over 100 were generally admitted, while those with scores of less than 100 fell into categories that could result in either admittance, postponement, or rejection. Of particular interest to the Court was that an applicant would be entitled to twenty points based solely upon his or her membership in an underrepresented racial or ethnic minority group. The policy also included the "flagging" of certain applications for special review, and underrepresented minorities were among those whose applications were flagged.[1412]
The Court in Gratz struck down this admissions policy, relying again on Justice Lewis Powell's decision in Bakke. Although Justice Lewis Powell had thought it permissible that "race or ethnic background . . . be deemed a 'plus' in a particular applicant's file,"[1413] the system he envisioned involved individualized consideration of all elements of an application to ascertain how the applicant would contribute to the diversity of the student body. According to the majority opinion in Gratz, the undergraduate policy did not provide for such individualized consideration. Instead, by automatically distributing twenty points to every applicant from an "underrepresented minority" group, the policy effectively admitted every qualified minority applicant. Although it acknowledged that the volume of applications could make individualized assessments an "administrative challenge," the Court found that the policy was not narrowly tailored to achieve respondents' asserted compelling interest in diversity.[1414]
The Court subsequently revisited the question of affirmative action in undergraduate education in its 2016 decision in Fisher v. University of Texas at Austin, upholding the University of Texas at Austin's (UT's) use of "scores" based, in part, on race in filling approximately 25% of the slots in its incoming class that were not required by statute to be awarded to Texas high school students who finished in the top 10% of their graduating class (Top Ten Percent Plan or TTPP).[1415] The Court itself suggested that the "sui generis" nature of the UT program,[1416] coupled with the "fact that this case has been litigated on a somewhat artificial basis" because the record lacked information about the impact of Texas's TTPP,[1417] may limit the decision's value for "prospective guidance."[1418] Nonetheless, certain language in the Court's decision, along with its application of the three "controlling factors" set forth in the Court's 2013 decision in Fisher,[1419] seem likely to have some influence, as they represent the Court's most recent jurisprudence on whether and when institutions of higher education may take race into consideration in their admission decisions. Specifically, the 2016 Fisher decision began and ended with broad language recognizing constraints on the implementation of affirmative action programs in undergraduate education, including language that highlights the university's "continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances"[1420] and emphasized that "[t]he Court's affirmance of the University's admissions policy today does not necessarily mean the University may rely on that same policy without refinement."[1421] Nonetheless, while citing these constraints, the 2016 Fisher decision held that the challenged UT program did not run afoul of the Fourteenth Amendment. In particular, the Court concluded that the state's compelling interest in the case was not in enrolling a certain number of minority students, but in obtaining the educational benefits that flow from student body diversity, noting that the state cannot be faulted for not specifying a particular level of minority enrollment.[1422] The Court further concurred with UT's view that the alleged "critical mass" of minority students achieved under the 10% plan was not dispositive, as the university had found that it was insufficient,[1423] and that UT had found other means of promoting student-body diversity were unworkable.[1424] In so concluding, the Court held that the university had met its burden in surviving strict scrutiny by providing sworn affidavits from UT officials and internal assessments based on months of studies, retreats, interviews, and reviews of data that amounted, in the view of the Court, to a "reasoned, principled explanation" of the university's interests and its efforts to achieve those interests in a manner that was no broader than necessary.[1425] The Court refused to question the motives of university administrators and did not further scrutinize the underlying evidence relied on by the respondents, which may indicate that there are some limits to the degree in which the Court will evaluate a race-conscious admissions policy once the university has provided sufficient support for its approach.[1426]
While institutions of higher education were striving to increase racial diversity in their student populations, state and local governments were engaged in a similar effort with respect to elementary and secondary schools. Whether this goal could be constitutionally achieved after Grutter and Gratz, however, remained unclear, especially as the type of individualized admission considerations found in higher education are less likely to have useful analogies in the context of public school assignments. Thus, for instance, in Parents Involved in Community Schools v. Seattle School District No. 1,[1427] the Court rejected plans in both Seattle, Washington and Jefferson County, Kentucky, that, in order reduce what the Court found to be "de facto" racial imbalance in the schools, used "racial tiebreakers" to determine school assignments.[1428] As in Bakke, numerous opinions by a fractured Court led to an uncertain resolution of the issue.
In an opinion by Chief Justice John Roberts, a majority of the Court in Parents Involved in Community Schools agreed that the plans before the Court did not include the kind of individualized considerations that had been at issue in the university admissions process in Grutter, but rather focused primarily on racial considerations.[1429] Although a majority of the Court found the plans unconstitutional, only four Justices (including the Chief Justice) concluded that alleviating "de facto" racial imbalance in elementary and secondary schools could never be a compelling governmental interest. Justice Anthony Kennedy, while finding that the school plans at issue were unconstitutional because they were not narrowly tailored,[1430] suggested in separate concurrence that relieving "racial isolation" could be a compelling governmental interest. The Justice even envisioned the use of plans based on individual racial classifications "as a last resort" if other means failed.[1431] As Justice Anthony Anthony Kennedy's concurrence appears to represent a narrower basis for the judgment of the Court than does Justice John Roberts' opinion, it appears to represent, for the moment, the controlling opinion for the lower courts.[1432]
On June 29, 2023, the Supreme Court issued a decision in two cases involving Fourteenth Amendment Equal Protection Clause challenges to university admissions policies, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College[1433] and Students for Fair Admissions, Inc. v. University of North Carolina.[1434] The challenged university admissions programs sought to promote student body diversity through the use of race-conscious preferences.[1435] The Court ruled that, because Harvard's and the University of North Carolina's admissions policies "lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause."[1436] However, the Court suggested that institutions of higher education may consider during the admissions process "an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise," provided that the discussion is tied to the student's character or "unique ability to contribute to the university."[1437]
Facially Neutral Laws Implicating Suspect Classifications[edit | edit source]
Applying the Equal Protection Clause of the Fourteenth Amendment, the Court ordinarily upholds classifications in law or government policy so long as they are supported by a rational basis. However, the Court will apply strict scrutiny to an express racial classification and will often invalidate it; similarly, it will more closely scrutinize an express classification based on sex, alienage, or whether a person was born out of wedlock.[1438] In reviewing a neutral classification that is an obvious pretext for racial discrimination or for discrimination on some other forbidden basis, the Court will apply heightened scrutiny and, often, invalidate the provision containing the classification.[1439] But a neutral law that has a disproportionately adverse effect upon a racial group or upon another group entitled to heightened protection under the Equal Protection Clause presents a much more difficult case.
In Washington v. Davis, the Court held that someone claiming harm from the disparate or disproportionate racial impact of a race-neutral law or policy must prove the government's intent to discriminate.[1440] A classification having a differential impact, absent a showing of discriminatory purpose, is subject to review under only the lenient rationality standard.[1441] Before Davis, lower courts had relied on a prior Supreme Court decision suggesting the racially disparate effects of government conduct alone could support a constitutional claim.[1442] Further, the Court had upheld similar claims under certain civil rights statutes without requiring plaintiffs to prove a discriminatory purpose.[1443] Accordingly, the lower federal courts developed a constitutional "disproportionate impact" framework within which government conduct lacking a substantial justification violated equal protection when it resulted in adverse, disparate impacts on racial minorities.[1444] Davis rejected the approach of these cases, but the Court noted that "an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact . . . may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds."[1445]
The Court has since clarified how courts might identify a discriminatory intent behind a facially neutral law. Looking to a challenged local zoning decision that had a greater adverse impact on black and low-income residents than on others, the Court in Village of Arlington Heights v. Metropolitan Housing Development Corp. explained in some detail how a court could inquire into a defendant's motivation.[1446] First, a plaintiff is not required to prove that discrimination was the only motive; establishing "a discriminatory purpose" among other, permissible purposes shifts the burden to the defendant to show that it would have made the same decision without the impermissible motive.[1447] Second, determining whether discrimination was a motivating factor "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available."[1448] A disparate impact provides a starting point, and "[s]ometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face," but the Court anticipated such cases would be "rare."[1449] In the absence of a stark pattern, a court should look to such factors as the "historical background of the decision," especially if there is a series of official discriminatory actions.[1450] "The specific sequence of events" may shed light on purpose, as would "departures from the normal procedural sequence" or from the usual substantive considerations.[1451] A court may evaluate decisionmakers' statements, and "[i]n some extraordinary instances the members [of the decisionmaking body] might be called to the stand at trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege."[1452] Usually, a court will look to all the circumstances to ascertain intent.
The Court has held that a law that directly and foreseeably perpetuates the effects of past discrimination can be facially neutral, and that these effects may not alone establish the requisite discriminatory intent. In Massachusetts Personnel Administrator v. Feeney, the Court considered a state law requiring that veteran job applicants who passed a civil service examination be ranked ahead of all non-veterans, even those with higher test scores.[1453] The lower court observed that as a result of the armed forces' historical exclusion of women, the preference excluded virtually all women from state civil service positions. The lower court held that this result was easily predictable, and so might be intentional.[1454] Reversing, the Supreme Court found the veteran preference law neither overtly nor covertly gender-based. According to the Court, too many men were non-veterans to permit such a conclusion and some women were veterans.[1455] That the preference implicitly incorporated past official discrimination against women, the Court held, did not undermine the state's legitimate public purpose of rewarding veterans for their service.[1456] Nor did the foreseeability of the preference's consequences establish the requisite showing of intent. The Court stated: "'Discriminatory purpose' . . . implies more than intent as volition or intent as awareness of consequences. . . . It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group."[1457] Applying this reasoning in other cases, the Court has held that the repeal of antidiscrimination measures alone does not violate equal protection.[1458]
Since Arlington Heights and Feeney, the Court has taken various approaches to determining intent from showings of disparate racial impacts and other circumstantial evidence. For example, in City of Mobile v. Bolden, the Court considered the constitutionality of the use of a multi-member electoral district in Alabama that diluted the voting strength of Black voters. [1459] Rather than consider the totality of circumstances, the plurality evaluated separately such factors as election of minority candidates, discrimination by elected leaders, and a local history or official racial discrimination, holding that none proved a constitutional violation.[1460] The Court in Rogers v. Lodge, in contrast, considered similar factors in a totality-of-the-circumstances analysis and upheld a lower court ruling that a multi-member electoral district in Georgia was being maintained for a racially discriminatory purpose.[1461] The Lodge Court did not require direct proof of intent, stating: "[A]n invidious purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another."[1462] The Court also emphasized that "laws and practices which, though neutral on their face, serve to maintain the status quo" that had been created by intentional discrimination, were "relevant to drawing an inference of purposeful discrimination."[1463] The fact that no black person had ever been elected in the majority-black county, the Court concluded, was "important evidence of purposeful exclusion."[1464] Together with a showing of past discrimination, of systemic exclusion of black citizens from the political process, of educational segregation and discrimination, and of elected officials' unresponsiveness to the needs of the black community, this evidence indicated the presence of discriminatory motivation. The Court also looked to the "depressed socio-economic status" of the black population as being both a result of past discrimination and a barrier to black citizens' access to voting power.[1465] The Court determined that the question of discriminatory intent was one of fact, not law, and therefore reviewed and affirmed the district court's finding of discriminatory intent under the deferential "clearly erroneous" standard.[1466]
Context matters in cases examining racially disparate impacts. In a grand jury selection case, the Court, in Castenada v. Partida (in a five-four decision) seemingly departed from Davis and Arlington Heights's refusal to find constitutional violations based on disparate impacts alone.[1467] Noting that disproportionate impacts did not themselves prove an equal protection claim, the Court nonetheless held that a plaintiff who showed a significant racial discrepancy between the proportion of the county's population with Spanish surnames and the proportion of recently selected jurors with Spanish surnames established a prima facie case of discrimination, shifting the burden to the defendant to show that racially neutral criteria were used.[1468] Several factors probably account for the seeming difference in the Court's rulings. First, the Court has long recognized that discrimination in jury selection can be inferred more easily from disproportionate outcomes than can other forms of discrimination.[1469] As the Court pointed out in another jury case, "it taxes our credulity to say that mere chance resulted in" marked underrepresentation, and "[t]he result bespeaks discrimination."[1470] Second, the jury selection processes are often "highly subjective" and thus easily manipulated for discriminatory purposes, unlike the processes in Davis and Arlington Heights, which were regularized and open to inspection.[1471] Thus, in jury cases disparate impacts may suffice to shift the burden to defendants to show a lack of discriminatory intent while in other contexts, at least where the challenged state procedures are open and facially objective, it is the plaintiffs who must show animus.
In a more recent case, Department of Homeland Security v. Regents of the University of California, a four-justice plurality rejected an equal protection challenge premised on disparate impact.[1472] Like the jury selection cases, in this case the particular context, here immigration, likely played a role. Litigants challenged the Department of Homeland Security's decision to rescind the Deferred Action for Childhood Arrivals (DACA) program.[1473] The DACA program offered "immigration relief" in the form of "favorable treatment" for certain people who arrived in the United States as children.[1474] The plaintiffs argued that the rescission decision violated equal protection guarantees because it was motivated by impermissible animus, "evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission," which included shifting positions about whether to continue the program; "and (3) pre- and post-election statements by President Trump" that were critical of Latinos.[1475] In considering the first factor, the plurality found that this disparate impact was "expected" based on the fact that "Latinos make up a large share of the unauthorized alien population."[1476] On the second factor, the plurality said the Administration's "decision to reevaluate DACA . . . was a natural response" to new concerns about the program's legality.[1477] And finally, the plurality concluded that the President's statements, "remote in time and made in unrelated contexts," were not probative of other executive officials' decision to rescind the program.[1478]
Voting Rights[edit | edit source]
Voting Rights Generally[edit | edit source]
The Supreme Court's equal protection jurisprudence as applied to voting laws has most prominently been developed in the context of redistricting. The Supreme Court has interpreted the Constitution to require that electoral districts within a redistricting map contain an approximately equal number of persons, which is known as the equality standard or the principle of one person, one vote.[1479] In 1964, the Court interpreted provisions of the Constitution stating that Representatives are to be chosen "by the People of the several States"[1480] and "apportioned among the several States . . . according to their respective Numbers"[1481] to require that "as nearly as is practicable, one man's vote in a congressional election is to be worth as much as another's."[1482] Later that year, the Court extended the equality standard to apply to state legislative redistricting under the Equal Protection Clause, requiring all participants in an election "to have an equal vote."[1483] In a series of rulings since 1964, the Supreme Court has described the extent to which precise or ideal mathematical population equality among electoral districts is required.[1484]
The issue of partisan gerrymandering, which is "the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power,"[1485] has been litigated before the Supreme Court over the last three decades. In 1986, the Court ruled that partisan gerrymandering in state legislative redistricting was justiciable under the Equal Protection Clause, but a majority of the Justices could not agree on a test for ascertaining a violation.[1486] In 2019, the Court held that there were no judicially "discernible and manageable standards" for ascertaining violations.[1487]
While the denial of the franchise on the basis of race or color violates the Fifteenth Amendment, election laws that treat voters differently based on race can also violate the guarantee of equal protection under the Fourteenth Amendment.[1488] Hence, under certain circumstances, redistricting maps that dilute and weaken Black and other minority voting strength may be held unconstitutional.[1489] Much of the Supreme Court's redistricting jurisprudence has been prompted by disputes concerning the interplay between the requirements of the Voting Rights Act (VRA) and the constitutional standards of equal protection.[1490] That is, under certain circumstances, the VRA may require the creation of one or more majority-minority districts in a congressional redistricting plan in order to prevent the denial or abridgement of the right to vote based on race, color, or membership in a language minority.[1491] A majority-minority district is one in which a racial or language minority group comprises a voting majority.[1492] The creation of such districts can avoid minority vote dilution by helping ensure that racial or language minority groups are not submerged into the majority and, thereby, denied an equal opportunity to elect candidates of their choice.[1493] However, congressional redistricting plans must also conform with standards of equal protection under the Fourteenth Amendment to the Constitution.[1494] According to the Supreme Court, if race is the predominant factor in the drawing of district lines, above other traditional redistricting considerations--including compactness, contiguity, and respect for political subdivision lines--then a "strict scrutiny" standard of review is to be applied.[1495] To withstand strict scrutiny in this context, the state must demonstrate that it had a compelling governmental interest in creating a majority-minority district and the redistricting plan was narrowly tailored to further that compelling interest.[1496] These cases are often referred to as "racial gerrymandering" claims because the plaintiffs argue that race was improperly used in the drawing of district boundaries.[1497]
The Supreme Court has applied principles of equal protection to various types of requirements for voting and elections. According to the Supreme Court, "[t]he States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised. . . absent of course the discrimination which the Constitution condemns."[1498] For example, in examining voter qualification laws, the Court invalidated excessive durational residency requirements[1499] and poll tax requirements,[1500] but upheld a requirement that voters present government-issued photo identification.[1501] With regard to ballot access requirements, which establish prerequisites for a candidate's name to appear on the ballot, the Court determined that if the requirements impose only "reasonable, nondiscriminatory restrictions" on ballot access, they will trigger a "less exacting review," but if the requirements are considered to be "severe," they "must be be narrowly tailored and advance a compelling state interest."[1502]
According to the Supreme Court, once a geographical unit is established from which a representative is elected, the Equal Protection Clause requires all who vote in the election "to have an equal vote."[1503] In the 2000 presidential election contest, the Court determined that the Florida Supreme Court violated the Equal Protection Clause by not identifying and mandating uniform standards among counties for counting ballots.[1504] Once the right to vote is granted equally, the state cannot later, by "arbitrary and disparate treatment, value one person's vote over that of another," the Court announced.[1505] However, the Court limited its holding to "the present circumstances," where "a state court with the power to assure uniformity" fails to provide "minimal procedural safeguards."[1506]
Voter Qualifications[edit | edit source]
The Supreme Court has determined that, under the Fourteenth Amendment's Equal Protection Clause, states may require a duration of residency as a qualification to vote, but such requirements will be held unconstitutional unless the state can show that the requirement is necessary to serve a compelling interest.[1507] According to the Court in Dunn v. Blumstein, "[t]his exacting test" applies because the right to vote is "a fundamental political right . . . preservative of all rights," and because a "durational residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel."[1508] While acknowledging that states have "a legitimate and compelling interest" in preventing fraud by voters, in Dunn, the Court determined that a one-year residency requirement in a state and a three-month residency requirement in a county was not necessary to further "a compelling governmental interest."[1509] In contrast, the Court in Marston v. Lewis upheld a fifty-day durational residency and voter registration requirement, determining that the law was necessary to serve "the State's important interest in accurate voter lists."[1510]
In a landmark case, Harper v. Virginia State Board of Elections, the Supreme Court in 1966 held that restricting voting qualifications to those citizens who had paid a poll tax constituted invidious discrimination under the Fourteenth Amendment Equal Protection Clause.[1511] While underscoring that states have the limited power to establish qualifications for voting, the Court observed that "[w]ealth, like race, creed, or color is not germane to one's ability to participate intelligently in the electoral process."[1512] Extending this ruling, the Court held that the eligibility to vote in local school elections may not be limited to persons owning property in the district or who have children in school,[1513] and denied states the right to restrict the vote to property owners in elections on the issuance of revenue bonds[1514] or general obligation bonds.[1515] By contrast, the Court upheld a statute that required voters to present a government-issued photo identification in order to vote, as the state had not "required voters to pay a tax or a fee to obtain a new photo identification."[1516] The Court added that, although obtaining a government-issued photo identification is an "inconvenience" to voters, it "surely does not qualify as a substantial burden."[1517]
The Court has also evaluated challenges under the Equal Protection Clause to voter qualification laws in other contexts. For instance, the Court has determined that a state that exercised general criminal, taxing, and other jurisdiction over residents of a federal enclave within the state could not treat these persons as nonresidents for voting purposes because the residents of the enclave "have a stake equal to that of other" "residents of the state."[1518] In that vein, the Court invalidated a state constitutional provision prohibiting any member of the military, who entered military service outside the state, from establishing a voting residence within the state during the duration of their military service because it imposed an "invidious discrimination in violation of the Fourteenth Amendment."[1519] Although the Court acknowledged the "special problems" presented to the state "in determining whether servicemen have actually acquired a new domicile in a State for franchise purposes," the Court determined that the constitutional provision "goes beyond such rules."[1520] With regard to prisoners, in a case applying rational basis scrutiny, the Court held that the failure of a state to provide for absentee balloting by unconvicted jail inmates, when absentee ballots were available to other classes of voters, did not deny equal protection when it was not shown that the inmates could not vote in any other way.[1521] Subsequently, however, the Court held unconstitutional a statute denying absentee registration and voting rights to persons confined awaiting trial or serving misdemeanor sentences.[1522]
Partisan Gerrymandering[edit | edit source]
Partisan political gerrymandering, "the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power,"[1523] is an issue that has vexed the federal courts for more than three decades.[1524] Prior to the 1960s, the Supreme Court had determined that challenges to redistricting plans presented nonjusticiable political questions that were most appropriately addressed by the political branches of government, not the judiciary.[1525] In 1962, the Supreme Court held in the landmark ruling of Baker v. Carr that a constitutional challenge to a redistricting plan is justiciable, identifying factors for determining when a case presents a nonjusticiable political question, including "a lack of [a] judicially discoverable and manageable standard[ ] for resolving it."[1526] In the years that followed, while invalidating redistricting maps on equal protection grounds for other reasons--inequality of population among districts[1527] or racial gerrymanding[1528]--the Court did not nullify a map based on a determination of partisan gerrymandering.[1529]
In the 1986 case of Davis v. Bandemer, the Court ruled that partisan gerrymandering in state legislative redistricting is justiciable under the Equal Protection Clause.[1530] Although the vote was 6-3 in favor of justiciability, a majority of the Justices could not agree on the proper test for determining whether the particular gerrymandering in this case was unconstitutional and reversed the lower court's holding of unconstitutionality by a vote of 7-2.[1531] Hence, as a result of Bandemer, the Court left open the possibility that claims of unconstitutional partisan gerrymandering could be judicially reviewable, but did not ascertain a discernible and manageable standard for adjudicating such claims.[1532]
Similarly, following Bandemer, the Supreme Court could not reach a consensus for several years on the proper test for adjudicating claims of unconstitutional partisan gerrymandering. First, in the 2004 ruling, Vieth v. Jubelirer, a four-Justice plurality would have overturned Bandemer to hold that "political gerrymandering claims are nonjusticiable."[1533] Justice Anthony Kennedy, casting the deciding vote and concurring in the Court's judgment, agreed that the challengers before the Court had not yet articulated "comprehensive and neutral principles for drawing electoral boundaries" or any rules that would properly "limit and confine judicial intervention."[1534] Nonetheless, Justice Anthony Kennedy held out hope that in some future case, the Court could find "some limited and precise rationale" to adjudicate other partisan gerrymandering claims, thereby leaving Bandemer intact.[1535] In 2006, in League of United Latin American Citizens v. Perry, a splintered Court again failed to adopt a standard for adjudicating political gerrymandering claims, but did not overrule Bandemer by deciding such claims were nonjusticiable.[1536] Likewise, in 2018, the Court considered claims of partisan gerrymandering, but ultimately issued narrow rulings on procedural grounds specific to those cases.[1537]
Ultimately, in the 2019 case, Rucho v. Common Cause, the Supreme Court held that there were no judicially "discernible and manageable standards" by which courts could adjudicate claims of unconstitutional partisan gerrymandering, thereby implicitly overruling Bandemer.[1538] According to the Court, the federal courts "are not equipped to apportion political power as a matter of fairness" and "it is not even clear what fairness looks like in this context."[1539] As a result of Rucho, claims of unconstitutional partisan gerrymandering are not subject to federal court review because they present nonjusticiable political questions.[1540] Writing for the Court, Chief Justice John Roberts acknowledged that excessive partisan gerrymandering "reasonably seem[s] unjust," stressing that the ruling "does not condone" it, but reiterated that "the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause."[1541]
Equality Standard and Vote Dilution[edit | edit source]
The Supreme Court has interpreted the Constitution to require that electoral districts within a redistricting map contain an approximately equal number of persons.[1542] This requirement is referred to as the "equality standard" or the principle of "one person, one vote."[1543] In 1964, the Court in Wesberry v. Sanders[1544] interpreted provisions of the Constitution stating that Representatives are to be chosen "by the People of the several States"[1545] and "apportioned among the several States . . . according to their respective Numbers"[1546] to require that "as nearly as is practicable, one man's vote in a congressional election is to be worth as much as another's."[1547] Later in 1964, the Court in Reynolds v. Sims[1548] extended the equality standard to apply to state legislative redistricting under the Equal Protection Clause, requiring all participants in an election "to have an equal vote."[1549]
In a series of rulings since 1964, the Supreme Court has described the extent to which precise or ideal mathematical population equality among electoral districts is required.[1550] Ideal or precise equality is the average population that each district would contain if a state population were evenly distributed across all districts; and the total or "maximum population deviation" refers to the percentage difference from the ideal population between the most populated district and the least populated district in a redistricting map.[1551] In 1967, the Court announced that while "[d]e minimis deviations are unavoidable, . . . variations of 30% among [state legislative] senate districts and 40% among [state legislative] house districts can hardly be deemed de minimis," emphasizing that none of the Court's prior case law has approved of such large differences.[1552] By contrast, evaluating the principle of equal protection in the context of a county governing body, the Court approved of a population disparity among districts of 11.9% because of a "long tradition of overlapping functions and dual personnel" in the county government and because the map did not intrinsically contain "bias tending to favor particular political interests or geographic areas."[1553]
Nine years after deciding Reynolds v. Sims, the Court continued to clarify the population equality requirement. Underscoring that less deviation from precise population equality is permissible for congressional districts than is permissible for state legislative districts, in 1973, the Court upheld a state legislative redistricting map that contained a total population percentage deviation of 16.4%.[1554] The Court reached its decision by determiing, in part, that the challenged map "may reasonably be said to advance the rational state policy of respecting the boundaries of political subdivisions."[1555] In 1975, in holding that a 20% population deviation did not comport with standards of equal protection, the Court observed that a deviation of such "magnitude" cannot be constitutionally permissible without "significant state policies or other acceptable considerations that require adoption of a plan with so great a variance."[1556] In 2016, the Court held that challengers to maps with a "minor" deviation of less than 10% must show that it is "more probable than not" that the deviation "reflects the predominance of illegitimate reapportionment factors," concluding "that attacks on deviations under 10% will succeed only rarely, in unusual cases."[1557] Also in 2016, the Court rejected the argument that the Equal Protection Clause prohibits states from using total population, instead of total voting population, in drawing state legislative redistricting maps.[1558]
Inequalities Within a State and Vote Dilution[edit | edit source]
Invoking the Equal Protection Clause of the Fourteenth Amendment, the Supreme Court effectively ended the 2000 presidential election contest. In Bush v. Gore, the Court determined that the Florida Supreme Court violated the Equal Protection Clause by not identifying and mandating uniform standards among counties for counting ballots.[1559] The Florida court had ordered a partial manual recount of the Florida vote for presidential electors, requiring the counting of all ballots that contained a "clear indication of the intent of the voter," but allowing the relevant counties to determine the physical characteristics of a ballot that would satisfy this test.[1560]
According to the Supreme Court, the recount process approved by the Florida Supreme Court "is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter."[1561] Once the right to vote is granted equally, the state cannot later, by "arbitrary and disparate treatment, value one person's vote over that of another," the Court announced.[1562] While acknowledging that local jurisdictions can implement different election systems, the Court underscored that it was remedying a state court ruling that failed to provide "at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied."[1563] However, the Court in Bush v. Gore limited its holding to "the present circumstances," where "a state court with the power to assure uniformity" fails to provide "minimal procedural safeguards."[1564] Citing the "many complexities" of application of equal protection "in election processes generally," the Court distinguished the many situations where disparate treatment of votes results from different standards being applied by different local jurisdictions.[1565]
Once a geographical unit is established from which a representative is elected, the Equal Protection Clause requires all who vote in the election "to have an equal vote."[1566] In Gray v. Sanders, the Supreme Court invalidated a Georgia county unit system as a basis for tabulating votes whereby, based on population, each county was allocated a number of county-unit votes: "Counties with from 0 to 15,000 people were allotted two units; an additional one unit was allotted for the next 5,000 persons; an additional unit for the next 10,000 persons; another unit for each of the next two brackets of 15,000 persons; and, thereafter, two more units for each increase of 30,000 persons."[1567] Although each qualified voter was provided one vote in the statewide election under the "county unit system," the Court observed that the "end result weights the rural vote more heavily than the urban vote and weights some small rural counties heavier that other larger rural counties."[1568] In striking down the law, the Court emphasized that standards of equal protection require that "[o]nce the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote--whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit."[1569] Further, the Court in Gray characterized analogies drawn between this case and the electoral college, redistricting, and "other phases of the problems of representation in state or federal legislatures or conventions" as "inapposite," observing that the Constitution expressly contemplates those processes and this "case is only a voting case."[1570]
By contrast, in Gordon v. Lance, the Court approved a 60% affirmative vote requirement in a referendum election before constitutionally prescribed limits on bonded indebtedness or tax rates could be exceeded.[1571] Distinguishing its ruling in Gray v. Sanders, the Court pointed out that the equal protection violation found there was based on denying or diluting "voting power because of group characteristics-geographic location and property ownership-that bore no valid relation to the interest of those groups in the subject matter of the election . . . [and] was imposed irrespective of how members of those groups actually voted."[1572] Further, while acknowledging that the requirement departed from strict majority rule, the Court pointed out that the Constitution did not prescribe majority rule, but instead, proscribed discrimination through dilution of voting power or denial of the franchise because of some class characteristic-race, urban residency, or the like-and the provision at issue in this case was neither directed to nor affected any identifiable class.[1573]
Racial Vote Dilution and Racial Gerrymandering[edit | edit source]
Much of the Supreme Court's redistricting jurisprudence has been prompted by disputes concerning the interplay between the requirements of the Voting Rights Act (VRA) and the constitutional standards of equal protection.[1574] That is, under certain circumstances, the VRA may require the creation of one or more "majority-minority" districts in a congressional redistricting plan in order to prevent the denial or abridgement of the right to vote based on race, color, or membership in a language minority.[1575] A majority-minority district is one in which a racial or language minority group comprises a voting majority. The creation of such districts can avoid minority vote dilution by helping ensure that racial or language minority groups are not submerged into the majority and, thereby, denied an equal opportunity to elect candidates of their choice.
In its landmark 1986 decision Thornburg v. Gingles, the Supreme Court established a three-pronged test for proving vote dilution under Section 2 of the VRA.[1576] Under this test, (1) the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group must be able to show that it is politically cohesive; and (3) the minority must be able to demonstrate that the majority votes sufficiently as a bloc to enable the majority to defeat the minority group's preferred candidate absent special circumstances, such as the minority candidate running unopposed.[1577] Further interpreting the Gingles three-pronged test, in Bartlett v. Strickland, the Supreme Court ruled that the first prong of the test-requiring a minority group to be geographically compact enough to constitute a majority in a district-can only be satisfied if the minority group would constitute more than 50% of the voting population in a single-member district.[1578]
In addition to the VRA, however, congressional redistricting plans must also conform with standards of equal protection under the Fourteenth Amendment to the Constitution. According to the Supreme Court, if race is the predominant factor in the drawing of district lines, above other traditional redistricting considerations-including compactness, contiguity, and respect for political subdivision lines-then a "strict scrutiny" standard of review is to be applied.[1579] To withstand strict scrutiny in this context, the state must demonstrate that it had a compelling governmental interest in creating a majority-minority district and the redistricting plan was narrowly tailored to further that compelling interest.[1580] These cases are often referred to as "racial gerrymandering" claims because the plaintiffs argue that race was improperly used in the drawing of district boundaries.[1581] Case law in this area has revealed that there can be tension between compliance with the VRA and conformance with standards of equal protection.[1582]
In a series of cases, the Supreme Court has clarified the standards for ascertaining a racial gerrymandering claim under the Equal Protection Clause. For example, the Court has determined that successful claims of racial gerrymandering require plaintiffs to prove that racial considerations were "dominant and controlling" in the creation of the districts at issue.[1583] The Court has also held that in determining whether race is a predominant factor in the redistricting process, and thereby triggering strict scrutiny, a court must engage in a district-by-district analysis instead of analyzing the state as an undifferentiated whole.[1584] Further, according to the Court, plaintiffs challenging a state legislative redistricting plan on racial gerrymandering grounds need not prove, as a threshold matter, that the plan conflicts with traditional redistricting criteria.[1585] Nonetheless, the Court has held that plaintiffs need "to overcome the presumption of legislative good faith" by demonstrating that a legislature drew a redistricting map "with invidious intent."[1586]
Ballot Access[edit | edit source]
State laws that specify prerequisites for the names of candidates to appear on election ballots are known as ballot access requirements. Generally, states enact ballot access requirements to prevent ballot overcrowding, voter confusion, election fraud, and to facilitate election administration.[1587] Supreme Court case law demonstrates how ballot access requirements must comport with principles of equal protection under the Fourteenth Amendment.
While reasonable ballot access requirements are likely to be upheld, the Supreme Court has determined that the Constitution will not permit laws that impermissibly restrict or completely prohibit third-party and independent candidates from qualifying for the ballot.[1588] According to the Court, on the condition that ballot access requirements do not "unfairly or unnecessarily burden" new party or independent candidates (that is, candidates not affiliated with a political party), it may be constitutional for states to provide different requirements based on whether a candidate is a nominee of a major political party, a minor or new party, or an independent candidate.[1589]
In a series of ballot access cases, the Court has applied and refined this analysis. For instance, in the 1971 case of Jenness v. Fortson, the Court upheld ballot access requirements whereby candidates belonging to any political party that obtained 20% or more of the vote in the previous gubernatorial or presidential elections could obtain ballot access in the general election by winning the party's primary election while independent or candidates of other parties were required to obtain signatures of at least 5% of those registered to vote at the last election for the office sought.[1590] According to the Court, from the perspective of a candidate, the ballot access requirement did not violate the Equal Protection Clause because neither of the prescribed methods "can be assumed to be inherently more burdensome than the other."[1591] While recognizing that from the perspective of a political party, "the situation is somewhat different," the Court nonetheless determined that by providing separate mechanisms for obtaining ballot access for new and established political parties, the state was simply acknowledging the differences between the two types of parties.[1592] As the Court explained, in enacting the ballot access requirements, the state "surely [had] an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot--the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election."[1593]
In the 1974 case, Storer v. Brown, the Court was faced with a ballot access requirement that independent candidates "file a petition signed by voters not less in number than 5% of the total votes cast in California at the last general election."[1594] However, the law did not permit registered voters who voted in the primary election to sign an independent candidate's petition.[1595] In addition, the law prohibited an independent candidate from ballot access if the candidate voted in the preceding primary or had a registered affiliation with a political party "within one year prior to the immediately preceding primary."[1596] According to the Court in Storer, "to comply with the First and Fourteenth Amendments the State must provide a feasible opportunity for new political organizations and their candidates to appear on the ballot."[1597] Acknowledging that "no litmus-paper test" exists for determining which requirements pass constitutional muster, the Court emphasized that is "very much a matter of 'consider[ing] the facts and circumstances behind the law, the interest which the State claims to be protecting, and the interest of those who are disadvantaged by the classification.'"[1598]
In the 1997 case Timmons v. Twin Cities Area New Party, the Supreme Court announced that when evaluating whether a state election law comports with the First and Fourteenth Amendments, courts will weigh the "'character and magnitude' of the burden" imposed by the restrictions against the government's asserted interests, considering "the extent to which the State's concerns make the burden necessary."[1599] In Timmons, the Court held that if ballot access requirements impose only "reasonable, nondiscriminatory restrictions" on ballot access, they will trigger a "less exacting review" whereby "important regulatory interests" asserted by the state will typicially be sufficient "to justify 'reasonable, nondiscriminatory restrictions.'"[1600] However, if restrictions are considered to be "severe," the Court held that they "must be narrowly tailored and advance a compelling state interest."[1601]
Non-Race Based Classifications[edit | edit source]
Overview of Non-Race Based Classifications[edit | edit source]
Toward the end of the Warren Court, there emerged a trend to treat classifications on the basis of nationality or alienage as suspect,[1602] to accord sex classifications a somewhat heightened traditional review while hinting that a higher standard might be appropriate if such classifications passed lenient review,[1603] and to decide cases concerning statutory and administrative treatments of children born out of wedlock inconsistently.[1604] Language in a number of opinions appeared to suggest that poverty was a suspect condition, so that treating the poor adversely might call for heightened equal protection review.[1605]
However, in a major evaluation of equal protection analysis early in this period, the Court reaffirmed a two-tier approach, determining that where the interests involved that did not occasion strict scrutiny, the Court would decide the case on minimum rationality standards. Justice Lewis Powell, writing for the Court in San Antonio School Dist. v. Rodriguez,[1606] decisively rejected the contention that a de facto wealth classification, with an adverse impact on the poor, was either a suspect classification or merited some scrutiny other than the traditional basis,[1607] a holding that has several times been strongly reaffirmed by the Court.[1608] But the Court's rejection of some form of intermediate scrutiny did not long survive.
Without extended consideration of the issue of standards, the Court more recently adopted an intermediate level of scrutiny, perhaps one encompassing several degrees of intermediate scrutiny. Thus, gender classifications must, in order to withstand constitutional challenge, "serve important governmental objectives and must be substantially related to achievement of those objectives."[1609] And classifications that disadvantage persons born out of wedlock are subject to a similar though less exacting scrutiny of purpose and fit.[1610] This period also saw a withdrawal of the Court from the principle that alienage is always a suspect classification, so that some discriminations against aliens based on the nature of the political order, rather than economics or social interests, need pass only the lenient review standard.[1611]
The Court has so far resisted further expansion of classifications that must be justified by a standard more stringent than rational basis. For example, the Court has held that age classifications are neither suspect nor entitled to intermediate scrutiny.[1612] Although the Court resists the creation of new suspect or "quasi-suspect" classifications, it may still, on occasion, apply the Royster Guano rather than the Lindsley standard of rationality.[1613]
Alienage Classification[edit | edit source]
An alien, whether present lawfully, unlawfully, temporarily, or permanently, is a "person" within the meaning of the Equal Protection Clause and receives its protection.[1614] One of the earliest equal protection decisions, Yick Wo v. Hopkins,[1615] involved the constitutionality of a municipal ordinance that granted officials absolute and unrestrained authority to grant licenses for laundries.[1616] The Supreme Court found the officials were employing their authority to deny permission to resident Chinese aliens.[1617] The Court struck down the facially neutral city ordinance as an equal protection violation, stating that the distinction was based on "no reason . . . except hostility to the race and nationality. . . . "[1618]
In many subsequent cases after Yick Wo until 1948, the Court allowed less favorable treatment of aliens whenever the alienage classification related to a "special public interest."[1619] In particular, the Court upheld state laws forbidding aliens from taking possession of natural resources, citing a state's significant legitimate interest in reserving use of these resources for its citizens.[1620] The Court also sustained laws prohibiting the ownership of land by aliens and the indirect control of lands by aliens.[1621] By contrast, in Truax v. Reich,[1622] the Court struck down an Arizona law that required employers with more than five employees to hire at least 80% qualified voters or native-born citizens.[1623] According to the Court, "No special public interest with respect to any particular business is shown that could possibly be deemed to support the enactment."[1624]
The Court eroded the "special interest" doctrine in the 1948 decision Takahashi v. Fish & Game Commission,[1625] which involved a challenge brought by a Japanese alien (then ineligible for U.S. citizenship under federal law) to a state statute barring issuance of commercial fishing licenses to persons "ineligible to citizenship."[1626] The Court struck down the California law under the Fourteenth Amendment, holding that "'ownership' [of fish] is inadequate to justify California in excluding any or all aliens who are lawful residents of the state from making a living by fishing in the ocean off its shore while permitting all others to do so."[1627] Writing for the Court, Justice Hugo Black reasoned that "the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits."[1628]
The Court began applying a more explicitly rigorous standard of review to alienage classification statutes in the 1970s. In the 1971 decision Graham v. Richardson,[1629] the Supreme Court struck down state statutes that either wholly disqualified resident aliens for welfare assistance or imposed a lengthy durational residency requirement on eligibility.[1630] The Court announced that it would apply strict scrutiny to alienage classifications, reasoning that "classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close scrutiny."[1631]
Other decisions applying strict scrutiny soon followed. In the 1973 decision Sugarman v. Dougall,[1632] the Court voided a state law making citizenship a requirement for any position in the competitive class of a state civil service system.[1633] According to the Court, a state's power "to preserve the basic conception of a political community" enables it to prescribe the qualifications of its officers and voters,[1634] and this power would extend "to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government."[1635] However, a flat ban on alien employees for much of the state's career public service, including both policy-making and nonpolicy-making jobs, ran afoul of the requirement that, in achieving a valid interest through the use of a suspect classification, the state must employ means that are precisely drawn in light of the valid purpose.[1636] In In re Griffiths,[1637] the Court struck down a state law that excluded aliens from being licensed as attorneys.[1638] The Court reaffirmed that strict scrutiny was the proper test for distinctions based on alienage and reasoned that it was impermissible under the Fourteenth Amendment for states to require citizenship as a condition of practicing law.[1639] Likewise, the Court in Examining Board v. Flores de Otero[1640] invalidated a Puerto Rico statute that barred licensing aliens to practice engineering.[1641] Additionally, in Nyquist v. Mauclet,[1642] the Supreme Court applied strict scrutiny to invalidate a New York law that restricted the receipt of scholarships and similar financial support to U.S. citizens, those who had applied for citizenship, and those who declared an intent to apply for citizenship as soon as they became eligible.[1643]
In the following Term, however, the Supreme Court held that not every exclusion of aliens was subject to strict scrutiny, "because to do so would 'obliterate all the distinctions between citizens and aliens, and thus deprecate the historic values of citizenship.'"[1644] Accordingly, the Court has carved out an exception and applies rational basis review to alienage classifications related to self-government and the democratic process. In Foley v. Connelie,[1645] the Court upheld a state law that excluded aliens from appointment as members of the state police force.[1646] The Court reasoned that the police function discharged "a most fundamental obligation of government to its constituency" and necessarily cloaked the police with substantial discretionary powers.[1647] Continuing to enlarge the exception, the Court in Ambach v. Norwick[1648] sustained a state law barring resident aliens who had not manifested an intention to apply for citizenship from employment as public school teachers.[1649] The Court applied Foley, declaring that rational basis review was appropriate.[1650] Teachers, the Court observed, perform a task that "go[es] to the heart of representative government" because of the role of public education in cultivating civic values, as well as the responsibility and discretion they have in fulfilling that role.[1651]
Then, in Cabelle v. Chavez-Salido,[1652] the Supreme Court sustained a state law imposing a citizenship requirement upon all positions designated as "peace officers" as it applied to employment as a probation officer.[1653] Applying rational basis review, the Court reasoned that probation officers both serve as law enforcement and perform an educational function for those they supervise.[1654] In Bernal v. Fainter,[1655] however, the Supreme Court invalidated a Texas law that required U.S. citizenship to become a notary public.[1656] The Court declined to apply the exception and instead reviewed the law under strict scrutiny. The Court distinguished notaries from employees who "are invested either with policymaking responsibility or broad discretion in the execution of public policy that requires the routine exercise of authority over individuals."[1657]
Thus, the Court has so far made three distinctions when analyzing equal protection challenges based on alienage. First, it has disapproved of the earlier line of cases that allowed aliens to be treated in a less favorable manner whenever the classification is based on a "special public interest," and now would foreclose attempts by the states to retain certain economic benefits, primarily employment and opportunities for livelihood, exclusively for citizens. Second, subject to a limited exception, classifications with an adverse impact on aliens will generally be subject to strict scrutiny and usually fail. Third, some alienage classifications related to self-government and the democratic process need only satisfy rational basis review, but typically only when those classifications relate to positions that involve policy-making responsibility or the exercise of authority over others.
The Supreme Court has addressed one instance involving the application of the Equal Protection Clause in the more specific context of unlawfully present aliens. In Plyler v. Doe,[1658] the Court considered a Texas education law that withheld from local school districts any state funds for the education of children not "legally admitted" to the country and authorized local school districts to deny enrollment to these children.[1659] The Court did not explicitly articulate a level of scrutiny but rejected the application of strict scrutiny, stating that "[u]ndocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a constitutional irrelevancy. Nor is education a fundamental right."[1660] Instead, the Court appeared to apply intermediate scrutiny in evaluating discrimination against unlawfully present alien children in regard to education.[1661] The Court held the Texas law unconstitutional under the Equal Protection Clause, rejecting Texas's purported interests in preserving limited resources for its lawful residents, deterring an influx of unlawfully present aliens, avoiding the special burden imposed by these children, and serving children who were more likely to remain in the state and contribute to its welfare.[1662] The total denial of an education, according to the Court, would stamp the children with an "enduring disability" that would permanently harm both them and the state.[1663]
Out of Wedlock Births[edit | edit source]
After wrestling in a number of cases with the question of the permissibility of governmental classifications disadvantaging persons born out of wedlock and the standard for determining which classifications are sustainable, the Court arrived at a standard difficult to state and even more difficult to apply.[1664] Although the Court has determined that a person's status as having been born out of wedlock "is analogous in many respects to the personal characteristics that have been held to be suspect when used as the basis of statutory differentiations," the analogy is "not sufficient to require 'our most exacting scrutiny.'" The scrutiny to which it is entitled is intermediate, "not a toothless [scrutiny]," but somewhere between that accorded race and that accorded ordinary economic classifications. Basically, the standard requires a determination of a legitimate legislative aim and a careful review of how well the classification serves, or "fits," the aim.[1665] The common rationale of all the cases involving state action that distinguishes among people based on whether they were born out of wedlock is not clear, is in many respects not wholly consistent,[1666] but the theme that seems to be imposed on them by the more recent cases is that so long as the challenged statute does not so structure its conferral of rights, benefits, or detriments so that some children born out of wedlock who would otherwise qualify in terms of the statute's legitimate purposes are disabled from participation, the imposition of greater burdens upon children born out of wedlock or some classes of children born out of wedlock (for example, those not acknowledged by their fathers) than upon children born to married parents is permissible.[1667]
The issue of intestate succession rights for children born out of wedlock has divided the Court over the entire period. At first adverting to the broad power of the states over descent of real property, the Court employed relaxed scrutiny to sustain a law denying children born out of wedlock the right to share equally with children born to married parents in the estate of their common father, who had acknowledged the children born out of wedlock (but not "legitimated" them) and who had died intestate.[1668] Labine was strongly disapproved, however, and virtually overruled in Trimble v. Gordon,[1669] which found an equal protection violation in a statute allowing children born out of wedlock to inherit by intestate succession from their mothers but from their fathers only if the father had "acknowledged" the child and the child had been "legitimated" by the marriage of the parents. The father in Trimble had not acknowledged his child, and had not married the mother, but a court had determined that he was in fact the father and had ordered that he pay child support. Carefully assessing the purposes asserted to be the basis of the statutory scheme, the Court found all but one to be impermissible or inapplicable and that one not served closely enough by the restriction. First, it was impermissible to attempt to influence the conduct of adults not to engage in illicit sexual activities by visiting the consequences upon the offspring.[1670] Second, the assertion that the statute mirrored the assumed intent of decedents, in that, knowing of the statute's operation, they wold have acted to counteract it through a will or otherwise, was rejected as unproved and unlikely.[1671] Third, the argument that the law presented no insurmountable barrier to children born out of wedlock inheriting since a decedent could have left a will, married the mother, or taken steps to "legitimate" the child, was rejected as inapposite.[1672] Fourth, the statute did address a substantial problem, a permissible state interest, presented by the difficulties of proving paternity and avoiding spurious claims. However, the court thought the means adopted, total exclusion, did not approach the "fit" necessary between means and ends to survive the scrutiny appropriate to this classification. The state court was criticized for failing "to consider the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity. For at least some significant categories of children born out of wedlock to intestate men, inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws."[1673] Because the state law did not follow a reasonable middle ground, it was invalidated.
A reasonable middle ground was discerned, at least by Justice Lewis Powell, in Lalli v. Lalli,[1674] concerning a statute that permitted children born to married parents to inherit automatically from both their parents, while children born out of wedlock generally could inherit automatically only from their mothers, and could inherit from their intestate fathers only if a court of competent jurisdiction had, during the father's lifetime, entered an order declaring paternity. The child tendered evidence of paternity, including a notarized document in which the putative father, in consenting to his marriage, referred to him as "my son" and several affidavits by persons who stated that the elder Lalli had openly and frequently acknowledged that the younger Lalli was his child. In the prevailing view, the single requirement of entry of a court order during the father's lifetime declaring the child as his met the "middle ground" requirement of Trimble; it was addressed closely and precisely to the substantial state interest of seeing to the orderly disposition of property at death by establishing proof of paternity of children born out of wedlock and avoiding spurious claims against intestate estates. To be sure, some children born out of wedlock who were unquestionably established as children of the deceased would be disqualified because of failure of compliance, but individual fairness is not the test. The test rather is whether the requirement is closely enough related to the interests served to meet the standard of rationality imposed. Also, although the state's interest could no doubt have been served by permitting other kinds of proof, that too is not the test of the statute's validity. Hence, the balancing necessitated by the Court's promulgation of standards in such cases caused it to come to different results on closely related fact patterns, making predictability quite difficult but perhaps manageable.[1675]
The Court's difficulty in arriving at predictable results has extended outside the area of descent of property. Thus, a Texas child support law affording children born to married parents a right to judicial action to obtain support from their fathers while not affording the right to children born out of wedlock denied the latter equal protection. "[A] State may not invidiously discriminate against [children born out of wedlock] by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother."[1676]
Similarly, the Court struck down a federal Social Security provision that made eligible for benefits, because of an insured parent's disability, all children born to that parent while he or she was married as well as those children born out of wedlock to that parent who were capable of inheriting personal property from the wage-earning parent under state intestacy law; children who were deemed to be born out of wedlock only because of a nonobvious defect in their parents' marriage; and children born out of wedlock who had been "legitimated" in accordance with state law, but that made other children born out of wedlock eligible only if they were born prior to the onset of disability and if they were dependent upon the parent, or lived with the parent, prior to the onset of disability. The Court deemed the purpose of the benefits to be to aid all children and rejected the argument that the burden on children born out of wedlock was necessary to avoid fraud.[1677]
However, in a second case, an almost identical program, providing benefits to children of a deceased insured, was sustained because its purpose was found to be to give benefits to children who were dependent upon the deceased parent and the classifications served that purpose. Presumed dependent were all children born to the deceased and his or her spouse while he or she was married, as well as those children born out of wedlock who were able to inherit under state intestacy laws, who were deemed to be born out of wedlock only because of the technical invalidity of the parent's marriage, who had been acknowledged in writing by the father, who had been declared to be the father's by a court decision, or who had bwho held entitled to the father's support by a court. Children born out of wedlock that were not covered by these presumptions had to establish that they were living with the insured parent or were being supported by him when the parent died. According to the Court, all the presumptions constituted an administrative convenience, which was a permissible device because those children born out of wedlock who were entitled to benefits because they were in fact dependent would receive benefits upon proof of the fact, and it was irrelevant that other children not dependent in fact also received benefits.[1678]
Gender-Based Classifications[edit | edit source]
Doctrine on Gender Classifications from 1870s to 1960s[edit | edit source]
Shortly after ratification of the Fourteenth Amendment, the refusal of Illinois to license a woman to practice law was challenged before the Supreme Court, and the Court rejected the challenge in tones that prevailed well into the twentieth century. For example, the Court stated in 1873 that "[t]he civil law, as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood."[1679] On the same premise, a statute restricting the franchise to men was sustained.[1680]
The greater number of cases involved legislation aimed to protect women from oppressive working conditions, as by prescribing maximum hours[1681] or minimum wages[1682] or by restricting some of the things women could be required to do.[1683] A 1961 decision upheld a state law that required jury service of men but that gave women the option of serving or not. "We cannot say that it is constitutionally impermissible for a State acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities."[1684] Another type of protective legislation for women that was sustained by the Court is that premised on protection of morals, as by forbidding the sale of liquor to women.[1685] In a highly controversial ruling, the Court sustained a state law that forbade the licensing of any female bartender, except for the wives or daughters of male owners. The Court purported to view the law as one for the protection of the health and morals of women generally, with the exception being justified by the consideration that such women would be under the eyes of a protective male.[1686]
A wide variety of sex discrimination by governmental and private parties, including sex discrimination in employment and even the protective labor legislation previously sustained, is now proscribed by federal law. In addition, federal law requires equal pay for equal work.[1687] et seq., bans discrimination against either sex in employment. See, e.g., Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971); Dothard v. Rawlinson, 433 U.S. 321 (1977); Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702 (1978); Arizona Governing Comm. for Tax Deferred Plans v. Norris, 463 U.S. 1073 (1983) (actuarially based lower monthly retirement benefits for women employees violates Title VII); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) ("hostile environment" sex harassment claim is actionable). Reversing rulings that pregnancy discrimination is not reached by the statutory bar on sex discrimination, General Electric Co. v. Gilbert, 429 U.S. 125 (1976); Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), Congress enacted the Pregnancy Discrimination Act, Pub. L. No. 95-555 (1978), 92 Stat. 2076, amending [1] 42 U.S.C. § 2000e. The Equal Pay Act, 77 Stat. 56 (1963), amending the Fair Labor Standards Act, 29 U.S.C. § 206(d), generally applies to wages paid for work requiring "equal skill, effort, and responsibility." See Corning Glass Works v. Brennan, 417 U.S. 188 (1974). On the controversial issue of "comparable worth" and the interrelationship of title VII and the Equal Pay Act, see County of Washington v. Gunther, 452 U.S. 161 (1981). Some states have followed suit.[1688] While the proposed Equal Rights Amendment was before the states and ultimately failed to be ratified,[1689] the Supreme Court undertook a major evaluation of sex classification doctrine, first applying a "heightened" traditional standard of review (with bite) to void a discrimination and then, after coming within a vote of making sex a suspect classification, settling upon an intermediate standard. These standards continue, with some uncertainties of application and some tendencies among the Justices both to lessen and to increase the burden of governmental justification of sex classifications.
Doctrine on Gender Classifications During the 1970s[edit | edit source]
In Reed v. Reed,[1690] the Court held invalid a state probate law that gave males preference over females when both were equally entitled to administer an estate. Because the statute "provides that different treatment be accorded to the applicants on the basis of their sex," Chief Justice Burger wrote, "it thus establishes a classification subject to scrutiny under the Equal Protection Clause." The Court proceeded to hold that under traditional equal protection standards--requiring a classification to be reasonable and not arbitrarily related to a lawful objective--the classification made was an arbitrary way to achieve the objective the state advanced in defense of the law, that is, to reduce the area of controversy between otherwise equally qualified applicants for administration. Thus, the Court used traditional analysis but the holding seems to go somewhat further to say that not all lawful interests of a state may be advanced by a classification based solely on sex.[1691]
General Approach to Gender Classifications[edit | edit source]
It is now established that sex classifications, in order to withstand equal protection scrutiny, "must serve important governmental objectives and must be substantially related to achievement of those objectives."[1692] Thus, after several years in which sex distinctions were more often voided than sustained without a clear statement of the standard of review,[1693] a majority of the Court has arrived at the intermediate standard that many had thought it was applying in any event.[1694] The Court first examines the statutory or administrative scheme to determine if the purpose or objective is permissible and, if it is, whether it is important. Then, having ascertained the actual motivation of the classification, the Court engages in a balancing test to determine how well the classification serves the end and whether a less discriminatory one would serve that end without substantial loss to the government.[1695]
Some sex distinctions were seen to be based solely upon "old notions," no longer valid if ever they were, about the respective roles of the sexes in society, and those distinctions failed to survive even traditional scrutiny. Thus, a state law defining the age of majority as eighteen for females and twenty-one for males, entitling the male child to support by his divorced father for three years longer than the female child, was deemed merely irrational, grounded as it was in the assumption of the male as the breadwinner, needing longer to prepare, and the female as suited for wife and mother.[1696] Similarly, a state jury system that in effect excluded almost all women was deemed to be based upon an overbroad generalization about the role of women as a class in society, and the administrative convenience served could not justify it.[1697]
Even when the negative "stereotype" that is evoked is that of a stereotypical male, the Court has evaluated this as potential gender discrimination. In J. E. B. v. Alabama ex rel. T. B.,[1698] the Court addressed a paternity suit where men had been intentionally excluded from a jury through peremptory strikes. The Court rejected as unfounded the argument that men, as a class, would be more sympathetic to the defendant, the putative father. The Court also determined that gender-based exclusion of jurors would undermine the litigants' interest by tainting the proceedings, and in addition would harm the wrongfully excluded juror.
Assumptions about the relative positions of the sexes, however, are not without some basis in fact, and sex may sometimes be a reliable proxy for the characteristic, such as need, with which it is the legislature's actual intention to deal. But heightened scrutiny requires evidence of the existence of the distinguishing fact and its close correspondence with the condition for which sex stands as proxy. Thus, in the case that first expressly announced the intermediate scrutiny standard, the Court struck down a state statute that prohibited the sale of "non-intoxicating" 3.2 beer to males under twenty-one and to females under eighteen.[1699] Accepting the argument that traffic safety was an important governmental objective, the Court emphasized that sex is an often inaccurate proxy for other, more germane classifications. Taking the statistics offered by the state as of value, while cautioning that statistical analysis is a "dubious" business that is in tension with the "normative philosophy that underlies the Equal Protection Clause," the Court thought the correlation between males and females arrested for drunk driving showed an unduly tenuous fit to allow the use of sex as a distinction.[1700]
Invalidating an Alabama law imposing alimony obligations upon males but not upon females, the Court in Orr v. Orr acknowledged that assisting needy spouses was a legitimate and important governmental objective. Ordinarily, therefore, the Court would have considered whether sex was a sufficiently accurate proxy for dependency, and, if it found that it was, then it would have concluded that the classification based on sex had "a fair and substantial relation to the object of the legislation."[1701] However, the Court observed that the state already conducted individualized hearings with respect to the need of the wife, so that with little if any additional burden needy males could be identified and helped. The use of the sex standard as a proxy, therefore, was not justified because it needlessly burdened needy men and advantaged financially secure women whose husbands were in need.[1702]
Various forms of discrimination between unwed mothers and unwed fathers received different treatments based on the Court's perception of the justifications and presumptions underlying each. A New York law permitted the unwed mother but not the unwed father of a child born out of wedlock to block his adoption by withholding consent. Acting in the instance of one who acknowledged his parenthood and who had maintained a close relationship with his child over the years, the Court could discern no substantial relationship between the classification and some important state interest. Promotion of adoption of children born out of wedlock and their consequent "legitimation" was important, but the assumption that all unwed fathers either stood in a different relationship to their children than did the unwed mother or that the difficulty of finding the fathers would unreasonably burden the adoption process was overbroad, as the facts of the case revealed. No barrier existed to the state dispensing with consent when the father or his location is unknown, but disqualification of all unwed fathers may not be used as a shorthand for that step.[1703]
On the other hand, the Court sustained a Georgia statute that permitted the mother of a child born out of wedlock to sue for the wrongful death of the child but that allowed the father to sue only if he had "legitimated" the child and there is no mother.[1704] Similarly, the Court let stand, under the Fifth Amendment, a federal statute that required that, in order for a child born out of wedlock overseas to gain citizenship, a citizen father, unlike a citizen mother, must acknowledge or "legitimate" the child before the child's eighteenth birthday.[1705] The Court emphasized the ready availability of proof of a child's maternity as opposed to paternity, but the dissent questioned whether such a distinction was truly justified under strict scrutiny considering the ability of modern techniques of DNA paternity testing to settle concerns about parentage.
The issue of sex qualifications for the receipt of governmental financial benefits has divided the Court and occasioned close distinctions. A statutory scheme under which a serviceman could claim his spouse as a "dependent" for allowances while a servicewoman's spouse was not considered a "dependent" unless he was shown in fact to be dependent upon her for more than one half of his support was held an invalid dissimilar treatment of similarly situated men and women, not justified by the administrative convenience rationale.[1706] In Weinberger v. Wiesenfeld,[1707] the Court struck down a Social Security provision that gave survivor's benefits based on the insured's earnings to the widow and minor children but gave such benefits only to the children and not to the widower of a deceased woman worker. Focusing not only upon the discrimination against the widower but primarily upon the discrimination visited upon the woman worker whose earnings did not provide the same support for her family that a male worker's did, the Court saw the basis for the distinction resting upon the generalization that a woman would stay home and take care of the children while a man would not. Because the Court perceived the purpose of the provision to be to enable the surviving parent to choose to remain at home to care for minor children, the sex classification ill-fitted the end and was invidiously discriminatory.
But, when, in Califano v. Goldfarb,[1708] the Court was confronted with a Social Security provision structured much as the benefit sections struck down in Frontiero and Wiesenfeld, even in the light of an express heightened scrutiny, no majority of the Court could be obtained for the reason for striking down the statute. The section provided that a widow was entitled to receive survivors' benefits based on the earnings of her deceased husband, regardless of dependency, but payments were to go to the widower of a deceased wife only upon proof that he had been receiving at least half of his support from her. The plurality opinion treated the discrimination as consisting of disparate treatment of women wage-earners whose tax payments did not earn the same family protection as male wage earners' taxes. Looking to the purpose of the benefits provision, the plurality perceived it to be protection of the familial unit rather than of the individual widow or widower and to be keyed to dependency rather than need. The sex classification was thus found to be based on an assumption of female dependency that ill-served the purpose of the statute and was an ill-chosen proxy for the underlying qualification. Administrative convenience could not justify use of such a questionable proxy.[1709] Justice John Paul Stevens, concurring, accepted most of the analysis of the dissent but nonetheless came to the conclusion of invalidity. His argument was essentially that while either administrative convenience or a desire to remedy discrimination against female spouses could justify use of a sex classification, neither purpose was served by the sex classification actually used in this statute.[1710]
Again, the Court divided closely when it sustained two instances of classifications claimed to constitute sex discrimination. In Rostker v. Goldberg,[1711] rejecting presidential recommendations, Congress provided for registration only of males for a possible future military draft, excluding women altogether. The Court discussed but did not explicitly choose among proffered equal protection standards, but it apparently applied the intermediate test of Craig v. Boren. However, it did so in the context of its often-stated preference for extreme deference to military decisions and to congressional resolution of military decisions. Evaluating the congressional determination, the Court found that it has not been "unthinking" or "reflexively" based upon traditional notions of the differences between men and women; rather, Congress had extensively deliberated over its decision. It had found, the Court asserted, that the purpose of registration was the creation of a pool from which to draw combat troops when needed, an important and indeed compelling governmental interest, and the exclusion of women was not only "sufficiently but closely" related to that purpose because they were ill-suited for combat, could be excluded from combat, and registering them would be too burdensome to the military system.[1712]
In Michael M. v. Superior Court,[1713] the Court expressly adopted the Craig v. Boren intermediate standard, but its application of the test appeared to represent a departure in several respects from prior cases in which it had struck down sex classifications. Michael M. involved the constitutionality of a statute that punished males, but not females, for having sexual intercourse with a nonspousal person under eighteen years of age. The plurality and the concurrence generally agreed, but with some difference of emphasis, that, although the law was founded on a clear sex distinction, it was justified because it served an important governmental interest--the prevention of teenage pregnancies. Inasmuch as women may become pregnant and men may not, women would be better deterred by that biological fact, and men needed the additional legal deterrence of a criminal penalty. Thus, the law recognized that, for purposes of this classification, men and women were not similarly situated, and the statute did not deny equal protection.[1714]
In a 1996 case, the Court required that a state demonstrate "exceedingly persuasive justification" for gender discrimination. When a female applicant challenged the exclusion of women from the historically male-only Virginia Military Institute (VMI), the State of Virginia defended the exclusion of females as essential to the nature of training at the military school.[1715] The state argued that the VMI program, which included rigorous physical training, deprivation of personal privacy, and an "adversative model" that featured minute regulation of behavior, would need to be unacceptably modified to facilitate the admission of women. While recognizing that women's admission would require accommodation such as different housing assignments and physical training programs, the Court found that the reasons set forth by the state were not "exceedingly persuasive," and thus the state did not meet its burden of justification. The Court also rejected the argument that a parallel program established by the state at a private women's college served as an adequate substitute, finding that the program lacked the military-style structure found at VMI, and that it did not equal VMI in faculty, facilities, prestige, or alumni network.
The Court in Sessions v. Morales-Santana applied the "exceedingly persuasive justification" test to strike down a gender-based classification found in a statute that allowed for the acquisition of U.S. citizenship by a child born abroad to an unwed couple if one of the parents was a U.S. citizen.[1716] The law at issue in Morales-Santana, which had been enacted many decades earlier, conditioned the grant of citizenship on the U.S. citizen parent's physical presence in the United States prior to the child's birth, providing a shorter presence requirement for an unwed U.S. citizen mother relative to the unwed U.S. citizen father.[1717] According to the majority, such a classification "must substantially serve an important government interest today,"[1718] and the law in question was based on "two once habitual, but now untenable, assumptions": (1) that marriage presupposes that the husband is dominant and the wife is subordinate; (2) an unwed mother is the natural and sole guardian of a non-marital child.[1719] Having found that the law was an "overbroad generalization[ ]" about males and females and was based on the "obsolescing view" about unwed fathers,[1720] the Court concluded that the citizenship provision's "discrete duration-of-residency requirements for unwed mothers and fathers who have accepted parental responsibility [was] stunningly anachronistic."[1721]
In response to what the lower court had described as the "most vexing problem" in the case,[1722] the Morales-Santana Court, in crafting a remedy for the equal protection violation, deviated from the presumption that "extension, rather than nullification" of the denied benefit is generally the "proper course."[1723] The Court observed that Congress had established derivative citizenship rules that varied depending upon whether one or both parents were U.S. citizens and whether the child was born in or outside marriage.[1724] Justice Ruth Bader Ginsburg writing for the majority concluded that extending the much-shorter physical presence requirement applicable to unwed U.S. citizen mothers to unwed U.S. citizen fathers would run significantly counter to Congress's intentions when it established this statutory scheme, because such a remedy would result in a longer physical presence requirement for a married U.S. citizen who had a child abroad than for a similarly situated unmarried U.S. citizen.[1725] As a result, the Court held that the longer physical presence requirement for unwed U.S. citizen fathers governed, as that is the remedy that "Congress likely would have chosen had it been apprised of the constitutional infirmity."[1726]
Another area presenting some difficulty is that of the relationship of pregnancy classifications to gender discrimination. In Cleveland Board of Education v. LaFleur,[1727] which was decided upon due process grounds, two school systems requiring pregnant school teachers to leave work four and five months respectively, before the expected childbirths were found to have acted arbitrarily and irrationally in establishing rules not supported by anything more weighty than administrative convenience buttressed with some possible embarrassment of the school boards in the face of pregnancy. On the other hand, the exclusion of pregnancy from a state financed program of payments to persons disabled from employment was upheld against equal protection attack as supportable by legitimate state interests in the maintenance of a self-sustaining program with rates low enough to permit the participation of low-income workers at affordable levels.[1728] The absence of supportable reasons in one case and their presence in the other may well have made the significant difference.
Facially Non-Neutral Laws Benefiting Women[edit | edit source]
Cases of "benign" discrimination, that is, statutory classifications that benefit women and disadvantage men in order to overcome the effects of past societal discrimination against women, have presented the Court with some difficulty. Although the first two cases were reviewed under apparently traditional rational basis scrutiny, the more recent cases appear to subject these classifications to the same intermediate standard as any other sex classification. Kahn v. Shevin[1729] upheld a state property tax exemption allowing widows but not widowers a $500 exemption. In justification, the state had presented extensive statistical data showing the substantial economic and employment disabilities of women in relation to men. The provision, the Court found, was "reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for whom that loss imposes a disproportionately heavy burden."[1730] And, in Schlesinger v. Ballard,[1731] the Court sustained a provision requiring the mandatory discharge from the Navy of a male officer who has twice failed of promotion to certain levels, which in Ballard's case meant discharge after nine years of service, whereas women officers were entitled to thirteen years of service before mandatory discharge for want of promotion. The difference was held to be a rational recognition of the fact that male and female officers were dissimilarly situated and that women had far fewer promotional opportunities than men had.
Although in each of these cases the Court accepted the proffered justification of remedial purpose without searching inquiry, later cases caution that "the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme."[1732] Rather, after specifically citing the heightened scrutiny that all sex classifications are subjected to, the Court looks to the statute and to its legislative history to ascertain that the scheme does not actually penalize women, that it was actually enacted to compensate for past discrimination, and that it does not reflect merely "archaic and overbroad generalizations" about women in its moving force. But where a statute is "deliberately enacted to compensate for particular economic disabilities suffered by women," it serves an important governmental objective and will be sustained if it is substantially related to achievement of that objective.[1733]
Many of these lines of cases converged in Mississippi University for Women v. Hogan,[1734] in which the Court stiffened and applied its standards for evaluating claimed benign distinctions benefitting women and additionally appeared to apply the intermediate standard itself more strictly. The case involved a male nurse who wished to attend a female-only nursing school located in the city in which he lived and worked; if he could not attend this particular school he would have had to commute 147 miles to another nursing school that did accept men, and he would have had difficulty doing so and retaining his job. The state defended on the basis that the female-only policy was justified as providing "educational affirmative action for females." Recitation of a benign purpose, the Court said, was not alone sufficient. "[A] State can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification."[1735] But women did not lack opportunities to obtain training in nursing; instead they dominated the field. In the Court's view, the state policy did not compensate for discriminatory barriers facing women, but it perpetuated the stereotype of nursing as a woman's job. "[A]lthough the State recited a 'benign, compensatory purpose,' it failed to establish that the alleged objective is the actual purpose underlying the discriminatory classification."[1736] Even if the classification was premised on the proffered basis, the Court concluded, it did not substantially and directly relate to the objective, because the school permitted men to audit the nursing classes and women could still be adversely affected by the presence of men.[1737]
Non-Suspect Classifications[edit | edit source]
Meaning of Person in the Equal Protection Clause[edit | edit source]
In the case in which it was first called upon to interpret this clause, the Court doubted whether this provision could apply to state actions that were not directed at newly freed slaves, arguing that this Amendment was "clearly a provision for that race" and intended to remedy discriminatory laws directed at freed slaves.[1738] Nonetheless, in deciding the Granger Cases shortly thereafter, the Justices, as with the Due Process Clause, seemingly entertained no doubt that the railroad corporations were entitled to invoke the protection of the Clause.[1739] Nine years later, Chief Justice Morrison Waite announced from the bench that the Court would not hear argument on the question whether the Equal Protection Clause applied to corporations. "We are all of the opinion that it does."[1740] The word has been given the broadest possible meaning. "These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality. . . ."[1741] The only qualification is that a municipal corporation cannot invoke the clause against its state.[1742]
Meaning of Within Its Jurisdiction in the Equal Protection Clause[edit | edit source]
Persons "within its jurisdiction" are entitled to equal protection from a state. Largely because Article IV, Section 2, has from the beginning guaranteed the privileges and immunities of citizens in the several states, the Court has rarely construed the phrase in relation to natural persons.[1743] As to business entities, it was first held that a foreign corporation that was not doing business in a state in a manner that subjected it to the process of a state's courts was not "within the jurisdiction" of the state and could not complain that resident creditors were given preferences in the distribution of assets of an insolvent corporation.[1744] This holding was subsequently qualified, however, with the Court holding that a foreign corporation seeking to recover possession of property wrongfully taken in one state, but suing in another state in which it was not licensed to do business, was "within the jurisdiction" of the latter state, so that unequal burdens could not be imposed on the maintenance of the suit.[1745] The test of amenability to service of process within the state was ignored in a later case dealing with discriminatory assessment of property belonging to a nonresident individual.[1746] On the other hand, if a state has admitted a foreign corporation to do business within its borders, that corporation is entitled to equal protection of the laws, but not necessarily to identical treatment with domestic corporations.[1747]
Police Power Classifications and Equal Protection Clause[edit | edit source]
Justice Oliver Wendell Holmes' characterization of the Equal Protection Clause as the "usual last refuge of constitutional arguments"[1748] was no doubt made with the practice in mind of contestants tacking on an equal protection argument to a due process challenge of state economic regulation. Few police regulations have been held unconstitutional on this ground.
"[T]he Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it."[1749] The Court has made it clear that only the totally irrational classification in the economic field will be struck down,[1750] and it has held that legislative classifications that impact severely upon some businesses and quite favorably upon others may be saved through stringent deference to legislative judgment.[1751] So deferential is the classification that it denies the challenging party any right to offer evidence to seek to prove that the legislature is wrong in its conclusion that its classification will serve the purpose it has in mind, so long as the question is at least debatable and the legislature "could rationally have decided" that its classification would foster its goal.[1752] The Court has condemned a variety of statutory classifications as failing the rational basis test, although some of the cases are of doubtful vitality today and some have been questioned. Thus, the Court invalidated a statute that forbade stock insurance companies to act through agents who were their salaried employees but permitted mutual companies to operate in this manner.[1753] A law that required private motor vehicle carriers to obtain certificates of convenience and necessity and to furnish security for the protection of the public was held invalid because of the exemption of carriers of fish, farm, and dairy products.[1754] The same result befell a statute that permitted mill dealers without well-advertised trade names the benefit of a price differential but that restricted this benefit to such dealers entering the business before a certain date.[1755] In a decision since overruled, the Court struck down a law that exempted by name the American Express Company from the terms pertaining to the licensing, bonding, regulation, and inspection of "currency exchanges" engaged in the sale of money orders.[1756]
Economic Regulation and Taxing Power[edit | edit source]
Overview of Economic Regulation and Taxing Power[edit | edit source]
At the outset, the Court did not regard the Equal Protection Clause as having any bearing on taxation.[1757] It soon, however, entertained cases assailing specific tax laws under this provision,[1758] and in 1890 it cautiously conceded that "clear and hostile discriminations against particular persons and classes, especially such as are of an unusual character, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition."[1759] The Court observed, however, that the Equal Protection Clause "was not intended to compel the State to adopt an iron rule of equal taxation" and propounded some conclusions that remain valid today.[1760] In succeeding years the Clause has been invoked but sparingly to invalidate state levies. In the field of property taxation, inequality has been condemned only in two classes of cases: (1) discrimination in assessments, and (2) discrimination against foreign corporations. In addition, there are a handful of cases invalidating, because of inequality, state laws imposing income, gross receipts, sales and license taxes.
Classifications for State Taxes[edit | edit source]
The power of the state to classify for purposes of taxation is "of wide range and flexibility."[1761] A state may adjust its taxing system in such a way as to favor certain industries or forms of industry[1762] and may tax different types of taxpayers differently, despite the fact that they compete.[1763] It does not follow, however, that because "some degree of inequality from the nature of things must be permitted, gross inequality must also be allowed."[1764] Classification may not be arbitrary. It must be based on a real and substantial difference[1765] and the difference need not be great or conspicuous,[1766] but there must be no discrimination in favor of one as against another of the same class.[1767] Also, discriminations of an unusual character are scrutinized with special care.[1768] A gross sales tax graduated at increasing rates with the volume of sales,[1769] a heavier license tax on each unit in a chain of stores where the owner has stores located in more than one country,[1770] and a gross receipts tax levied on corporations operating taxicabs, but not on individuals,[1771] have been held to be a repugnant to the Equal Protection Clause. But it is not the function of the Court to consider the propriety or justness of the tax, to seek for the motives and criticize the public policy which prompted the adoption of the statute.[1772] If the evident intent and general operation of the tax legislation is to adjust the burden with a fair and reasonable degree of equality, the constitutional requirement is satisfied.[1773]
One not within the class claimed to be discriminated against cannot challenge the constitutionality of a statute on the ground that it denies equal protection of the law.[1774] If a tax applies to a class that may be separately taxed, those within the class may not complain because the class might have been more aptly defined or because others, not of the class, are taxed improperly.[1775]
Foreign Corporations, Nonresidents, and State Taxes[edit | edit source]
The Equal Protection Clause does not require identical taxes upon all foreign and domestic corporations in every case.[1776] In 1886, a Pennsylvania corporation previously licensed to do business in New York challenged an increased annual license tax imposed by that state in retaliation for a like tax levied by Pennsylvania against New York corporations. This tax was held valid on the ground that the state, having power to exclude entirely, could change the conditions of admission for the future and could demand the payment of a new or further tax as a license fee.[1777] Later cases whittled down this rule considerably. The Court decided that "after its admission, the foreign corporation stands equal and is to be classified with domestic corporations of the same kind,"[1778] and that where it has acquired property of a fixed and permanent nature in a state, it cannot be subjected to a more onerous tax for the privilege of doing business than is imposed on domestic corporations.[1779] A state statute taxing foreign corporations writing fire, marine, inland navigation and casualty insurance on net receipts, including receipts from casualty business, was held invalid under the Equal Protection Clause where foreign companies writing only casualty insurance were not subject to a similar tax.[1780] Later, the doctrine of Philadelphia Fire Association v. New York was revived to sustain an increased tax on gross premiums which was exacted as an annual license fee from foreign but not from domestic corporations.[1781] Even though the right of a foreign corporation to do business in a state rests on a license, the Equal Protection Clause is held to ensure it equality of treatment, at least so far as ad valorem taxation is concerned.[1782] The Court, in WHYY Inc. v. Glassboro,[1783] held that a foreign nonprofit corporation licensed to do business in the taxing state is denied equal protection of the law where an exemption from state property taxes granted to domestic corporations is denied to a foreign corporation solely because it was organized under the laws of a sister state and where there is no greater administrative burden in evaluating a foreign corporation than a domestic corporation in the taxing state.
State taxation of insurance companies, insulated from Commerce Clause attack by the McCarran-Ferguson Act, must pass similar hurdles under the Equal Protection Clause. In Metropolitan Life Ins. Co. v. Ward,[1784] the Court concluded that taxation favoring domestic over foreign corporations "constitutes the very sort of parochial discrimination that the Equal Protection Clause was intended to prevent." Rejecting the assertion that it was merely imposing "Commerce Clause rhetoric in equal protection clothing," the Court explained that the emphasis is different even though the result in some cases will be the same: the Commerce Clause measures the effects which otherwise valid state enactments have on interstate commerce, while the Equal Protection Clause merely requires a rational relation to a valid state purpose.[1785] However, the Court's holding that the discriminatory purpose was invalid under equal protection analysis would also be a basis for invalidation under a different strand of Commerce Clause analysis.[1786]
State Income Taxes[edit | edit source]
A state law that taxes the entire income of domestic corporations that do business in the state, including that derived within the state, while exempting entirely the income received outside the state by domestic corporations that do no local business, is arbitrary and invalid.[1787] In taxing the income of a nonresident, there is no denial of equal protection in limiting the deduction of losses to those sustained within the state, although residents are permitted to deduct all losses, wherever incurred.[1788] A retroactive statute imposing a graduated tax at rates different from those in the general income tax law, on dividends received in a prior year that were deductible from gross income under the law in effect when they were received, does not violate the Equal Protection Clause.[1789]
State Inheritance Taxes[edit | edit source]
There is no denial of equal protection in prescribing different treatment for lineal relations, collateral kindred, and unrelated persons, or in increasing the proportionate burden of the tax progressively as the amount of the benefit increases.[1790] A tax on life estates where the remainder passes to lineal heirs is valid despite the exemption of life estates where the remainder passes to collateral heirs.[1791] There is no arbitrary classification in taxing the transmission of property to a brother or sister, while exempting that to a son-in-law or daughter-in-law.[1792] Vested and contingent remainders may be treated differently.[1793] The exemption of property bequeathed to charitable or educational institutions may be limited to those within the state.[1794] In computing the tax collectible from a nonresident decedent's property within the state, a state may apply the pertinent rates to the whole estate wherever located and take that proportion thereof which the property within the state bears to the total; the fact that a greater tax may result than would be assessed on an equal amount of property if owned by a resident, does not invalidate the result.[1795]
Motor Vehicle Taxes[edit | edit source]
In demanding compensation for the use of highways, a state may exempt certain types of vehicles, according to the purpose for which they are used, from a mileage tax on carriers.[1796] A state maintenance tax act, which taxes vehicle property carriers for hire at greater rates than it taxes similar vehicles carrying property not for hire, is reasonable, because the use of roads by one hauling not for hire generally is limited to transportation of his own property as an incident to his occupation and is substantially less extensive than that of one engaged in business as a common carrier.[1797] A property tax on motor vehicles used in operating a stage line that makes constant and unusual use of the highways may be measured by gross receipts and be assessed at a higher rate than are taxes on property not so employed.[1798] Common motor carriers of freight operating over regular routes between fixed termini may be taxed at higher rates than other carriers, common and private.[1799] A fee for the privilege of transporting motor vehicles on their own wheels over the highways of the state for purpose of sale does not violate the Equal Protection Clause as applied to cars moving in caravans.[1800] The exemption from a tax for a permit to bring cars into the state in caravans of cars moved for sale between zones in the state is not an unconstitutional discrimination where it appears that the traffic subject to the tax places a much more serious burden on the highways than that which is exempt from the tax.[1801] Also sustained as valid have been exemptions of vehicles weighing less than 3,000 pounds from graduated registration fees imposed on carriers for hire, notwithstanding that the exempt vehicles, when loaded, may outweigh those taxed;[1802] and exemptions from vehicle registration and license fees levied on private carriers operating a motor vehicle in the business of transporting persons or property for hire, the exemptions including one for vehicles hauling people and farm products exclusively between points not having railroad facilities and not passing through or beyond municipalities having railroad facilities.[1803]
Property Taxes[edit | edit source]
The state's latitude of discretion is notably wide in the classification of property for purposes of taxation and the granting of partial or total exemption on the grounds of policy,[1804] whether the exemption results from the terms of the statute itself or the conduct of a state official implementing state policy.[1805] A provision for the forfeiture of land for nonpayment of taxes is not invalid because the conditions to which it applies exist only in a part of the state.[1806] Also, differences in the basis of assessment are not invalid where the person or property affected might properly be placed in a separate class for purposes of taxation.[1807]
Early cases drew the distinction between intentional and systematic discriminatory action by state officials in undervaluing some property while taxing at full value other property in the same class--an action that could be invalidated under the Equal Protection Clause--and mere errors in judgment resulting in unequal valuation or undervaluation--actions that did not support a claim of discrimination.[1808] Subsequently, however, the Court in Allegheny Pittsburgh Coal Co. v. Webster County Comm'n,[1809] found a denial of equal protection to property owners whose assessments, based on recent purchase prices, ranged from eight to thirty-five times higher than comparable neighboring property for which the assessor failed over a ten-year period to readjust appraisals.
Then, only a few years later, the Court upheld a California ballot initiative that imposed a quite similar result: property that is sold is appraised at purchase price, whereas assessments on property that has stayed in the same hands since 1976 may rise no more that 2% per year.[1810] Allegheny Pittsburgh was distinguished, the disparity in assessments being said to result from administrative failure to implement state policy rather than from implementation of a coherent state policy.[1811] California's acquisition-value system favoring those who hold on to property over those who purchase and sell property was viewed as furthering rational state interests in promoting "local neighborhood preservation, continuity, and stability," and in protecting reasonable reliance interests of existing homeowners.[1812]
Allegheny Pittsburgh was similarly distinguished in Armour v. City of Indianapolis,[1813] where the Court held that Indianapolis, which had abandoned one method of assessing payments against affected lots for sewer projects for another, could forgive outstanding assessments payments without refunding assessments already paid. In Armour, owners of affected lots had been given the option of paying in one lump sum, or of paying in a ten, twenty or thirty-year installment plan. Despite arguments that the forgiveness of the assessment resulted in a significant disparity in the assessment paid by similarly situated homeowners, the Court found that avoiding the administrative burden of continuing to collect the outstanding fees was a rational basis for the City's decision.[1814]
An owner aggrieved by discrimination is entitled to have his assessment reduced to the common level.[1815] Equal protection is denied if a state does not itself remove the discrimination; it cannot impose upon the person against whom the discrimination is directed the burden of seeking an upward revision of the assessment of other members of the class.[1816] A corporation whose valuations were accepted by the assessing commission cannot complain that it was taxed disproportionately, as compared with others, if the commission did not act fraudulently.[1817]
Special Assessments[edit | edit source]
A special assessment is not discriminatory because apportioned on an ad valorem basis, nor does its validity depend upon the receipt of some special benefit as distinguished from the general benefit to the community.[1818] Railroad property may not be burdened for local improvements upon a basis so wholly different from that used for ascertaining the contribution demanded of individual owners as necessarily to produce manifest inequality.[1819] A special highway assessment against railroads based on real property, rolling stock, and other personal property is unjustly discriminatory when other assessments for the same improvement are based on real property alone.[1820] A law requiring the franchise of a railroad to be considered in valuing its property for apportionment of a special assessment is not invalid where the franchises were not added as a separate personal property value to the assessment of the real property.[1821] In taxing railroads within a levee district on a mileage basis, it is not necessarily arbitrary to fix a lower rate per mile for those having fewer than twenty-five miles of main line within the district than for those having more.[1822]
Sexual Orientation-Based Classifications[edit | edit source]
In its 1996 decision Romer v. Evans,[1823] the Supreme Court struck down a state constitutional amendment that both overturned local ordinances prohibiting discrimination against homosexuals, lesbians, or bisexuals, and prohibited any state or local governmental action to either remedy discrimination or to grant preferences based on sexual orientation. The Court declined to adopt the analysis of the Supreme Court of Colorado, which had held that the amendment infringed on gays' and lesbians' fundamental right to participate in the political process.[1824] The Court also declined to apply the heightened standard reserved for suspect classes to classifications based on sexual orientation, and assessed only whether the legislative classification had a rational relation to a legitimate end.
The Court concluded that the amendment failed even this restrained review. Animus against a class of persons, in the court's view, was not a legitimate government goal: "[I]f the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."[1825] The Court rejected arguments that the state amendment protected the freedom of association rights of landlords and employers, or would conserve resources for fighting discrimination against other groups. The Court found the law unnecessarily broad for these stated purposes, and concluded that no other legitimate rationale existed for such a restriction.[1826]
In the 2013 decision of United States v. Windsor,[1827] the Court struck down Section 3 of the Defense of Marriage Act (DOMA), which restricted federal recognition of same-sex marriages by specifying that, for any federal statute, ruling, regulation, or interpretation by an administrative agency, the word "spouse" would mean a husband or wife of the opposite sex.[1828] In Windsor, the petitioner had married her same-sex spouse in Canada and lived in New York where the marriage was recognized. After her partner died, the petitioner sought to claim a federal estate tax exemption for surviving spouses.[1829] DOMA precluded her claim for an exemption. In examining the federal statute, the Court initially noted Section 3 of DOMA took the "unusual" step of departing from the "history and tradition of reliance on state law to define marriage" in order to alter the reach of over 1,000 federal laws and limit the scope of federal benefits.[1830] Citing Romer, the Court noted that discrimination of "unusual character" warranted more careful scrutiny.[1831]
Noting New York's recognition of petitioner's marriage, the Court said, the state conferred a "dignity and status of immense import,"[1832] and the federal government, with Section 3 of DOMA, was aiming to impose "restrictions and disabilities" on and "injure the very class" New York sought to protect.[1833] Accordingly, the Court concluded that improper animus or purpose motivated Section 3 of DOMA because the law's avowed "purpose and practical" effect was to "impose a . . . stigma upon all who enter into same-sex marriages made lawful" by the states.[1834] Determining that "no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,"[1835] the Court held that Section 3 of DOMA violates "basic due process and equal protection principles applicable to the Federal Government."[1836] In striking down Section 3, the Court did not expressly set out what test the government must meet to justify laws calling for differentiated treatment based on sexual orientation.
Two years after Windsor, the Court, in Obergefell v. Hodges invalidated several state laws limiting the licensing and recognition of marriage to two people of the opposite sex.[1837] While the decision primarily rested on substantive due process grounds,[1838] the Court noted that the "right of same sex couples to marry" is "derived, too," from the Fourteenth Amendment's Equal Protection Clause.[1839] The Court characterized the Due Process Clause and the Equal Protection Clause as being closely related, and ruled that the Equal Protection Clause prevents states from excluding same-sex couples from civil marriage on the same terms and conditions as opposite sex couples.[1840] In reaching that conclusion, the Court noted that, just as evolving societal norms inform the liberty rights of same-sex couples, so too do "new insights and societal understandings" about homosexuality reveal "unjustified inequality" with respect to traditional concepts of the institution of marriage.[1841] The Court viewed marriage laws prohibiting the licensing and recognition of same-sex marriages as working a grave and continuing harm to same-sex couples, serving to "disrespect and subordinate them."[1842]
Wealth-Based Distinctions[edit | edit source]
Overview of Wealth-Based Distinctions and Equal Protection[edit | edit source]
Whatever may be the status of wealth distinctions per se as a suspect classification,[1843] there is no doubt that when the classification affects some area characterized as or considered to be fundamental in nature in the structure of our polity--the ability of criminal defendants to obtain fair treatment throughout the system, the right to vote, to name two examples--then the classifying body bears a substantial burden in justifying what it has done. The cases begin with Griffin v. Illinois,[1844] surely one of the most seminal cases in modern constitutional law. There, the state conditioned full direct appellate review--review to which all convicted defendants were entitled--on the furnishing of a bill of exceptions or report of the trial proceedings, in the preparation of which the stenographic transcript of the trial was usually essential. Only indigent defendants sentenced to death were furnished free transcripts; all other convicted defendants had to pay a fee to obtain them. "In criminal trials," Justice Hugo Black wrote in the plurality opinion, "a State can no more discriminate on account of poverty than on account of religion, race, or color." Although the state was not obligated to provide an appeal at all, when it does so it may not structure its system "in a way that discriminates against some convicted defendants on account of their poverty." The system's fault was that it treated defendants with money differently from defendants without money. "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has."[1845]
The principle of Griffin was extended in Douglas v. California,[1846] in which the court held to be a denial of due process and equal protection a system whereby in the first appeal as of right from a conviction counsel was appointed to represent indigents only if the appellate court first examined the record and determined that counsel would be of advantage to the appellant. "There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshaling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself."[1847]
From the beginning, Justice John Harlan opposed reliance on the Equal Protection Clause at all, arguing that a due process analysis was the proper criterion to follow. "It is said that a State cannot discriminate between the 'rich' and the 'poor' in its system of criminal appeals. That statement of course commands support, but it hardly sheds light on the true character of the problem confronting us here. . . . All that Illinois has done is to fail to alleviate the consequences of differences in economic circumstances that exist wholly apart from any state action." A fee system neutral on its face was not a classification forbidden by the Equal Protection Clause. "[N]o economic burden attendant upon the exercise of a privilege bears equally upon all, and in other circumstances the resulting differentiation is not treated as an invidious classification by the State, even though discrimination against 'indigents' by name would be unconstitutional."[1848] As he protested in Douglas: "The States, of course, are prohibited by the Equal Protection Clause from discriminating between 'rich' and 'poor' as such in the formulation and application of their laws. But it is a far different thing to suggest that this provision prevents the State from adopting a law of general applicability that may affect the poor more harshly than it does the rich, or, on the other hand, from making some effort to redress economic imbalances while not eliminating them entirely."[1849]
Due process furnished the standard, Justice John Harlan felt, for determining whether fundamental fairness had been denied. Where an appeal was barred altogether by the imposition of a fee, the line might have been crossed to unfairness, but on the whole he did not see that a system that merely recognized differences between and among economic classes, which as in Douglas made an effort to ameliorate the fact of the differences by providing appellate scrutiny of cases of right, was a system that denied due process.[1850]
The Court has reiterated that both due process and equal protection concerns are implicated by restrictions on indigents' exercise of the right of appeal. "In cases like Griffin and Douglas, due process concerns were involved because the States involved had set up a system of appeals as of right but had refused to offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal. Equal protection concerns were involved because the State treated a class of defendants--indigent ones--differently for purposes of offering them a meaningful appeal."[1851]
Criminal Procedures, Sentences, and Poverty[edit | edit source]
"[I]t is now fundamental that, once established, . . . avenues [of appellate review] must be kept free of unreasoned distinctions that can only impede open and equal access to the courts."[1852] "In all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds. . . ."[1853] No state may condition the right to appeal[1854] or the right to file a petition for habeas corpus[1855] or other form of postconviction relief upon the payment of a docketing fee or some other type of fee when the petitioner has no means to pay. Similarly, although the states are not required to furnish full and complete transcripts of their trials to indigents when excerpted versions or some other adequate substitute is available, if a transcript is necessary to adequate review of a conviction, either on appeal or through procedures for postconviction relief, the transcript must be provided to indigent defendants or to others unable to pay.[1856] This right may not be denied by drawing a felony-misdemeanor distinction or by limiting it to those cases in which confinement is the penalty.[1857] A defendant's right to counsel is to be protected as well as the similar right of the defendant with funds.[1858] The right to counsel on appeal necessarily means the right to effective assistance of counsel.[1859]
But, deciding a point left unresolved in Douglas, the Court held that neither the Due Process nor the Equal Protection Clause requires a state to furnish counsel to a convicted defendant seeking, after he had exhausted his appeals of right, to obtain discretionary review of his case in the state's higher courts or in the United States Supreme Court. Due process does not require that, after an appeal has been provided, the state must always provide counsel to indigents at every stage. "Unfairness results only if indigents are singled out by the State and denied meaningful access to that system because of their poverty." That essentially equal protection issue was decided against the defendant in the context of an appellate system in which one appeal could be taken as of right to an intermediate court, with counsel provided if necessary, and in which further appeals might be granted not primarily upon any conclusion about the result below but upon considerations of significant importance.[1860] Not even death row inmates have a constitutional right to an attorney to prepare a petition for collateral relief in state court.[1861]
This right to legal assistance, especially in the context of the constitutional right to the writ of habeas corpus, means that in the absence of other adequate assistance, as through a functioning public defender system, a state may not deny prisoners legal assistance of another inmate,[1862] and it must make available certain minimal legal materials.[1863]
A convicted defendant may not be imprisoned solely because of his indigency. Williams v. Illinois[1864] held that it was a denial of equal protection for a state to extend the term of imprisonment of a convicted defendant beyond the statutory maximum provided because he was unable to pay the fine that was also levied upon conviction. And Tate v. Short[1865] held that, in situations in which no term of confinement is prescribed for an offense but only a fine, the court may not jail persons who cannot pay the fine, unless it is impossible to develop an alternative, such as installment payments or fines scaled to ability to pay. Willful refusal to pay may, however, be punished by confinement.
Access to Courts, Wealth, and Equal Protection[edit | edit source]
In Boddie v. Connecticut,[1866] Justice John Harlan carried a majority of the Court with him in using a due process analysis to evaluate the constitutionality of a state's filing fees in divorce actions that a group of welfare assistance recipients attacked as preventing them from obtaining divorces. The Court found that, when the state monopolized the avenues to a pacific settlement of a dispute over a fundamental matter such as marriage--only the state could terminate the marital status--then it denied due process by inflexibly imposing fees that kept some persons from using that avenue. Justice John Harlan's opinion averred that a facially neutral law or policy that did in fact deprive an individual of a protected right would be held invalid even though as a general proposition its enforcement served a legitimate governmental interest. The opinion concluded with a cautioning observation that the case was not to be taken as establishing a general right to access to the courts.
The Boddie opinion left unsettled whether a litigant's interest in judicial access to effect a pacific settlement of some dispute was an interest entitled to some measure of constitutional protection as a value of independent worth or whether a litigant must be seeking to resolve a matter involving a fundamental interest in the only forum in which any resolution was possible. Subsequent decisions established that the latter answer was the choice of the Court. In United States v. Kras,[1867] the Court held that the imposition of filing fees that blocked the access of an indigent to a discharge of his debts in bankruptcy denied the indigent neither due process nor equal protection. The marital relationship in Boddie was a fundamental interest, the Court said, and upon its dissolution depended associational interests of great importance; however, an interest in the elimination of the burden of debt and in obtaining a new start in life, while important, did not rise to the same constitutional level as marriage. Moreover, a debtor's access to relief in bankruptcy had not been monopolized by the government to the same degree as dissolution of a marriage; one may, "in theory, and often in actuality," manage to resolve the issue of his debts by some other means, such as negotiation. While the alternatives in many cases, such as Kras, seem barely likely of successful pursuit, the Court seemed to be suggesting that absolute preclusion was a necessary element before a right of access could be considered.[1868]
Subsequently, on the initial appeal papers and without hearing oral argument, the Court summarily upheld the application to indigents of filing fees that in effect precluded them from appealing decisions of a state administrative agency reducing or terminating public assistance.[1869]
The continuing vitality of Griffin v. Illinois, however, is seen in M.L.B. v. S.L.J.,[1870] where the Court considered whether a state seeking to terminate the parental rights of an indigent must pay for the preparation of the transcript required for pursuing an appeal. Unlike in Boddie, the state, Mississippi, had afforded the plaintiff a trial on the merits, and thus the "monopolization" of the avenues of relief alleged in Boddie was not at issue. As in Boddie, however, the Court focused on the substantive due process implications of the state's limiting "[c]hoices about marriage, family life, and the upbringing of children,"[1871] while also referencing cases establishing a right of equal access to criminal appellate review. Noting that even a petty offender had a right to have the state pay for the transcript needed for an effective appeal,[1872] and that the forced dissolution of parental rights was "more substantial than mere loss of money,"[1873] the Court ordered Mississippi to provide the plaintiff the court records necessary to pursue her appeal.
Educational Opportunity, Wealth, and Equal Protection[edit | edit source]
Making even clearer its approach in de facto wealth classification cases, the Court in San Antonio School District v. Rodriguez[1874] rebuffed an intensive effort with widespread support in lower court decisions to invalidate the system prevalent in forty-nine of the fifty states of financing schools primarily out of property taxes, with the consequent effect that the funds available to local school boards within each state were widely divergent. Plaintiffs had sought to bring their case within the strict scrutiny--compelling state interest doctrine of equal protection review by claiming that under the tax system there resulted a de facto wealth classification that was "suspect" or that education was a "fundamental" right and the disparity in educational financing could not therefore be justified. The Court held, however, that there was neither a suspect classification nor a fundamental interest involved, that the system must be judged by the traditional restrained standard, and that the system was rationally related to the state's interest in protecting and promoting local control of education.[1875]
Important as the result of the case is, the doctrinal implications are far more important. The attempted denomination of wealth as a suspect classification failed on two levels. First, the Court noted that plaintiffs had not identified the "class of disadvantaged 'poor'" in such a manner as to further their argument. That is, the Court found that the existence of a class of poor persons, however defined, did not correlate with property-tax-poor districts; neither as an absolute nor as a relative consideration did it appear that tax-poor districts contained greater numbers of poor persons than did property-rich districts, except in random instances. Second, the Court held, there must be an absolute deprivation of some right or interest rather than merely a relative one before the deprivation because of inability to pay will bring into play strict scrutiny. "The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit."[1876] No such class had been identified here and more importantly no one was being absolutely denied an education; the argument was that it was a lower quality education than that available in other districts. Even assuming that to be the case, however, it did not create a suspect classification.
Education is an important value in our society, the Court agreed, being essential to the effective exercise of freedom of expression and intelligent utilization of the right to vote. But a right to education is not expressly protected by the Constitution, continued the Court, nor should it be implied simply because of its undoubted importance. The quality of education increases the effectiveness of speech or the ability to make informed electoral choice but the judiciary is unable to determine what level of quality would be sufficient. Moreover, the system under attack did not deny educational opportunity to any child, whatever the result in that case might be; it was attacked for providing relative differences in spending and those differences could not be correlated with differences in educational quality.[1877]
Rodriguez clearly promised judicial restraint in evaluating challenges to the provision of governmental benefits when the effect is relatively different because of the wealth of some of the recipients or potential recipients and when the results, what is obtained, vary in relative degrees. Wealth or indigency is not a per se suspect classification but it must be related to some interest that is fundamental, and Rodriguez doctrinally imposed a considerable barrier to the discovery or creation of additional fundamental interests. As the decisions reviewed earlier with respect to marriage and the family reveal, that barrier has not held entirely firm, but within a range of interests, such as education,[1878] the case remains strongly viable. Relying on Rodriguez and distinguishing Plyler, the Court in Kadrmas v. Dickinson Public Schools[1879] rejected an indigent student's equal protection challenge to a state statute permitting school districts to charge a fee for school bus service, in the process rejecting arguments that either "strict" or "heightened" scrutiny is appropriate. Moreover, the Court concluded, there is no constitutional obligation to provide bus transportation, or to provide it for free if it is provided at all.[1880]
Abortion, Public Assistance, and Equal Protection[edit | edit source]
Rodriguez furnished the principal analytical basis for the Court's subsequent decision in Maher v. Roe,[1881] holding that a state's refusal to provide public assistance for abortions that were not medically necessary under a program that subsidized all medical expenses otherwise associated with pregnancy and childbirth did not deny to indigent pregnant women equal protection of the laws. As in Rodriguez, the Court held that the indigent are not a suspect class.[1882] Again, as in Rodriguez and in Kras, the Court held that, when the state has not monopolized the avenues for relief and the burden is only relative rather than absolute, a governmental failure to offer assistance, while funding alternative actions, is not undue governmental interference with a fundamental right.[1883] Expansion of this area of the law of equal protection seems especially limited.
Fundamental Rights[edit | edit source]
Overview of Fundamental Rights[edit | edit source]
The other phase of active review of classifications holds that when certain fundamental liberties and interests are involved, government classifications which adversely affect them must be justified by a showing of a compelling interest necessitating the classification and by a showing that the distinctions are required to further the governmental purpose. The effect of applying the test, as in the other branch of active review, is to deny to legislative judgments the deference usually accorded them and to dispense with the general presumption of constitutionality usually given state classifications.[1884]
It is thought[1885] that the "fundamental right" theory had its origins in Skinner v. Oklahoma ex rel. Williamson,[1886] in which the Court subjected to "strict scrutiny" a state statute providing for compulsory sterilization of habitual criminals, such scrutiny being thought necessary because the law affected "one of the basic civil rights." In the apportionment decisions, Chief Justice Earl Warren observed that, "since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized."[1887] A stiffening of the traditional test could be noted in the opinion of the Court striking down certain restrictions on voting eligibility[1888] and the phrase "compelling state interest" was used several times in Justice William Brennan's opinion in Shapiro v. Thompson.[1889] Thereafter, the phrase was used in several voting cases in which restrictions were voided, and the doctrine was asserted in other cases.[1890]
Although no opinion of the Court attempted to delineate the process by which certain "fundamental" rights were differentiated from others,[1891] it was evident from the cases that the right to vote,[1892] the right of interstate travel,[1893] the right to be free of wealth distinctions in the criminal process,[1894] and the right of procreation[1895] were at least some of those interests that triggered active review when de jure or de facto official distinctions were made with respect to them. In Rodriguez,[1896] the Court also sought to rationalize and restrict this branch of active review, as that case involved both a claim that de facto wealth classifications should be suspect and a claim that education was a fundamental interest, so that providing less of it to people because they were poor triggered a compelling state interest standard. The Court readily agreed that education was an important value in our society. "But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. . . . [T]he answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution."[1897] A right to education is not expressly protected by the Constitution, continued the Court, and it was unwilling to find an implied right because of its undoubted importance.
But just as Rodriguez did not ultimately prevent the Court's adoption of a "three-tier" or "sliding-tier" standard of review, Justice Lewis Powell's admonition that only interests expressly or impliedly protected by the Constitution should be considered "fundamental" did not prevent the expansion of the list of such interests. The difficulty was that Court decisions on the right to vote, the right to travel, the right to procreate, as well as other rights, premise the constitutional violation to be of the Equal Protection Clause, which does not itself guarantee the right but prevents the differential governmental treatment of those attempting to exercise the right.[1898] Thus, state limitation on the entry into marriage was soon denominated an incursion on a fundamental right that required a compelling justification.[1899] Although denials of public funding of abortions werebecause only poor held to implicate no fundamental interest--abortion's being a fundamental interest--and no suspect classification--because only poor women needed public funding[1900] other denials of public assistance because of alienage, sex, or whether a person was born out of wedlock have been deemed to be governed by the same standard of review as affirmative harms imposed on those grounds.[1901] And, in Plyler v. Doe,[1902] the complete denial of education to the children of unlawfully present aliens was found subject to intermediate scrutiny and invalidated.
An open question after Obergefell v. Hodges, the 2015 case finding the right to same-sex marriage is protected by the Constitution, is the extent to which the Court is reconceptualizing equal protection analysis.[1903] In Obergefell, the Court concluded that state laws that distinguished between marriages between same- and opposite-sex married couples violated the Equal Protection Clause.[1904] However, in lieu of more traditional equal protection analysis, the Obergefell Court did not identify whether the base classification made by the challenged state marriage laws was "suspect." Nor did the Obergefell Court engage in a balancing test to determine whether the purpose of the state classification was tailored to or fit the contours of the classification. Instead, the Court merely declared that state laws prohibiting same-sex marriage "abridge[d] central precepts of equality."[1905] It remains to be seen whether Obergefell signals a new direction for the Court's equal protection jurisprudence or is merely an anomaly that indicates the fluctuating nature of active review, as the doctrine has been subject to shifting majorities and varying degrees of concern about judicial activism and judicial restraint. Nonetheless, as will be more fully reviewed below, the sliding scale of review underlies many of the Court's most recent equal protection cases, even if the jurisprudence and its doctrinal basis have not been fully elucidated or consistently endorsed by the Court.
Interstate Travel as a Fundamental Right[edit | edit source]
The doctrine of the "right to travel" actually encompasses three separate rights, of which two have been notable for the uncertainty of their textual support. The first is the right of a citizen to move freely between states, a right venerable for its longevity, but still lacking a clear doctrinal basis.[1906] The second, expressly addressed by the first sentence of Article IV, provides a citizen of one state who is temporarily visiting another state the "Privileges and Immunities" of a citizen of the latter state.[1907] The third is the right of a new arrival to a state, who establishes citizenship in that state, to enjoy the same rights and benefits as other state citizens. This right is most often invoked in challenges to durational residency requirements, which require that persons reside in a state for a specified period before taking advantage of the benefits of that state's citizenship.
Residency Requirements and Interstate Travel[edit | edit source]
Challenges to durational residency requirements have traditionally been made under the Equal Protection Clause of the Fourteenth Amendment. In 1999, however, the Court approved a doctrinal shift, so that state laws that distinguished between their own citizens, based on how long they had been in the state, would be evaluated instead under the Privileges or Immunities Clause of the Fourteenth Amendment.[1908] The Court did not, however, question the continuing efficacy of the earlier cases.
A durational residency requirement creates two classes of persons: those who have been within the state for the prescribed period and those who have not.[1909] But persons who have moved recently, at least from state to state,[1910] have exercised a right protected by the Constitution, and the durational residency classification either deters the exercise of that right or penalizes those who have exercised it.[1911] Any such classification is invalid "unless shown to be necessary to promote a compelling governmental interest."[1912] The constitutional right to travel has long been recognized,[1913] but it is only relatively recently that the strict standard of equal protection review has been applied to nullify durational residency requirements.
Thus, in Shapiro v. Thompson,[1914] durational residency requirements conditioning eligibility for welfare assistance on one year's residence in the state[1915] were voided. If the purpose of the requirements was to inhibit migration by needy persons into the state or to bar the entry of those who came from low-paying states to higher-paying ones in order to collect greater benefits, the Court said, the purpose was impermissible.[1916] If, on the other hand, the purpose was to serve certain administrative and related governmental objectives--the facilitation of the planning of budgets, the provision of an objective test of residency, minimization of opportunity for fraud, and encouragement of early entry of new residents into the labor force--then the requirements were rationally related to the purpose but they were not compelling enough to justify a classification that infringed a fundamental interest.[1917] In Dunn v. Blumstein,[1918] where the durational residency requirements denied the franchise to newcomers, such administrative justifications were found constitutionally insufficient to justify the classification.[1919] The Privileges or Immunities Clause of the Fourteenth Amendment was the basis for striking down a California law that limited welfare benefits for California citizens who had resided in the state for less than a year to the level of benefits that they would have received in the state of their prior residence.[1920]
However, a state one-year durational residency requirement for the initiation of a divorce proceeding was sustained in Sosna v. Iowa.[1921] Although it is not clear what the precise basis of the ruling is, it appears that the Court found that the state's interest in requiring that those who seek a divorce from its courts be genuinely attached to the state and its desire to insulate divorce decrees from the likelihood of collateral attack justified the requirement.[1922] Similarly, durational residency requirements for lower in-state tuition at public colleges have been held constitutionally justifiable, again, however, without a clear statement of reason.[1923] More recently, the Court has attempted to clarify these cases by distinguishing situations where a state citizen is likely to "consume" benefits within a state's borders (such as the provision of welfare) from those where citizens of other states are likely to establish residency just long enough to acquire some portable benefit, and then return to their original domicile to enjoy them (such as obtaining a divorce decree or paying the in-state tuition rate for a college education).[1924]
A state scheme for returning to its residents a portion of the income earned from the vast oil deposits discovered within Alaska foundered upon the formula for allocating the dividends; that is, each adult resident received one unit of return for each year of residency subsequent to 1959, the first year of Alaska's statehood. The law thus created fixed, permanent distinctions between an ever-increasing number of classes of bona fide residents based on how long they had been in the state. The differences between the durational residency cases previously decided did not alter the bearing of the right to travel principle upon the distribution scheme, but the Court's decision went off on the absence of any permissible purpose underlying the apportionment classification and it thus failed even the rational basis test.[1925]
Still unresolved are issues such as durational residency requirements for occupational licenses and other purposes.[1926] But this line of cases does not apply to state residency requirements themselves, as distinguished from durational provisions,[1927] and the cases do not inhibit the states when, having reasons for doing so, they bar travel by certain persons.[1928]
- ↑ Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). The controversy, political as well as constitutional, that this case stirred and still stirs is exemplified and analyzed in the material collected in S. Kutler, The Dred Scott Decision: Law or Politics? (1967). See also Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (1978); M. Graber, Dred Scott and the Problem of Constitutional Evil (2006); Earl M. Maltz, Dred Scott and the Politics of Slavery (2007); Symposium, 150th Anniversary of the Dred Scott Decision, 82 Chi.-Kent L. Rev. 1-455 (2007).
- ↑ 60 U.S. (19 How.) at 406, 418.
- ↑ Id. at 404-06, 417-18, 419-20.
- ↑ The proposed amendment as it passed the House contained no such provision, and it was decided in the Senate to include language like that finally adopted. Cong. Globe, 39th Cong. 2560, 2768-69, 2869 (1866). The sponsor of the language said: "This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is . . . a citizen of the United States." Id. at 2890. The legislative history is discussed at some length in Afroyim v. Rusk, 387 U.S. 253, 282-86 (1967) (Harlan, J., dissenting).
- ↑ "That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude . . . shall have the same right[s] . . . ." Ch. 31, 14 Stat. 27 (1866).
- ↑ United States v. Wong Kim Ark, 169 U.S. 649, 688 (1898).
- ↑ United States v. Wong Kim Ark, 169 U.S. 649 (1898).
- ↑ 169 U.S. at 682 (these are recognized exceptions to the common-law rule of acquired citizenship by birth).
- ↑ 169 U.S. at 680-82; Elk v. Wilkins, 112 U.S. 94, 99 (1884).
- ↑ United States v. Gordon, 25 F. Cas. 1364 (No. 15231) (C.C.S.D.N.Y. 1861) ; In re Look Tin Sing, 21 F. 905 (C.C.Cal. 1884); Lam Mow v. Nagle, 24 F.2d 316 (9th Cir. 1928).
- ↑ Insurance Co. v. New Orleans, 13 F. Cas. 67 (C.C.D. La. 1870). Not being citizens of the United States, corporations accordingly have been declared unable to claim the protection of that clause of the Fourteenth Amendment that secures the privileges and immunities of citizens of the United States against abridgment by state legislation. Orient Ins. Co. v. Daggs, 172 U.S. 557, 561 (1869). This conclusion was in harmony with the earlier holding in Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869), to the effect that corporations were not within the scope of the Privileges and Immunities Clause of state citizenship set out in Article IV, § 2. See also Selover, Bates & Co. v. Walsh, 226 U.S. 112, 126 (1912); Berea College v. Kentucky, 211 U.S. 45 (1908); Liberty Warehouse Co. v. Burley Growers' Coop. Mkt'g Ass'n,, 276 U.S. 71, 89 (1928); Grosjean v. Am. Press Co., 297 U.S. 233, 244 (1936).
- ↑ 387 U.S. 253 (1967). Though the Court had previously upheld the involuntary expatriation of a woman citizen of the United States during her marriage to a foreign citizen in Mackenzie v. Hare, 239 U.S. 299 (1915), the subject first received extended judicial treatment in Perez v. Brownell, 356 U.S. 44 (1958), in which the Court, by a 5-4 decision, upheld a statute denaturalizing a native-born citizen for having voted in a foreign election. For the Court, Justice Felix Frankfurter reasoned that Congress's power to regulate foreign affairs carried with it the authority to sever the relationship of this country with one of its citizens to avoid national implication in acts of that citizen which might embarrass relations with a foreign nation. Id. at 60-62. Three of the dissenters denied that Congress had any power to denaturalize. See discussion of Art. I, Sec. 8, Cl. 4: Expatriation (Termination of Citizenship) Generally to Art. I, Sec. 8, Cl. 4: Judicial Limits on Congress's Expatriation Power under Article I. In the years before Afroyim, a series of decisions had curbed congressional power.
- ↑ Afroyim v. Rusk, 387 U.S. 253, 262-63 (1967).
- ↑ Rogers v. Bellei, 401 U.S. 815 (1971). This, too, was a 5-4 decision, with Justices Blackmun, Harlan, Stewart, and White, and Chief Justice Burger in the majority, and Justices Black, Douglas, Brennan, and Marshall dissenting.
- ↑ 83 U.S. (16 Wall.) 36, 71, 77-78 (1873).
- ↑ Id. at 78, 79.
- ↑ 83 U.S. (16 Wall.) 36, 79-80 (1873).
- ↑ 211 U.S. 78, 97 (1908).
- ↑ Citing Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868). It was observed in United States v. Wheeler, 254 U.S. 281, 299 (1920), that the statute at issue in Crandall was actually held to burden directly the performance by the United States of its governmental functions. Cf. Passenger Cases (Smith v. Turner), 48 U.S. (7 How.) 283, 491-92 (1849) (Taney, C.J., dissenting). Four concurring Justices in Edwards v. California, 314 U.S. 160, 177, 181 (1941), would have grounded a right of interstate travel on the Privileges or Immunities Clause. More recently, the Court declined to ascribe a source but was content to assert the right to be protected. United States v. Guest, 383 U.S. 745, 758 (1966); Shapiro v. Thompson, 394 U.S. 618, 629-31 (1969). Three Justices ascribed the source to this clause in Oregon v. Mitchell, 400 U.S. 112, 285-87 (1970) (Stewart and Blackmun, J.J., and Burger, C.J., concurring in part and dissenting in part).
- ↑ Citing United States v. Cruikshank, 92 U.S. 542 (1876).
- ↑ Citing Ex parte Yarbrough, 110 U.S. 651 (1884); Wiley v. Sinkler, 179 U.S. 58 (1900). Note Justice William O. Douglas's reliance on this clause in Oregon v. Mitchell, 400 U.S. 112, 149 (1970) (concurring in part and dissenting in part).
- ↑ Citing United States v. Waddell, 112 U.S. 76 (1884).
- ↑ Citing Logan v. United States, 144 U.S. 263 (1892).
- ↑ Citing In re Quarles and Butler, 158 U.S. 532 (1895).
- ↑ Crutcher v. Kentucky, 141 U.S. 47, 57 (1891).
- ↑ Colgate v. Harvey, 296 U.S. 404 (1935), which was overruled five years later, see Madden v. Kentucky, 309 U.S. 83, 93 (1940), represented the first attempt by the Court since adoption of the Fourteenth Amendment to convert the Privileges or Immunities Clause into a source of protection of other than those "interests growing out of the relationship between the citizen and the national government." In Harvey, the Court declared that the right of a citizen to engage in lawful business in other states, such as by entering into contracts or by lending money, was a privilege of national citizenship, and this privilege was abridged by a state income tax law which excluded interest received on money from loans from taxable income only if the loan was made within the state.
- ↑ 307 U.S. 496, 510-18 (1939) (Justices Roberts and Black; Chief Justice Hughes may or may not have concurred on this point. Id. at 532). Justices Harlan Stone and Stanley Reed preferred to base the decision on the Due Process Clause. Id. at 518.
- ↑ 314 U.S. 160, 177-83 (1941).
- ↑ See also Oregon v. Mitchell, 400 U.S. 112, 149 (1970) (Justice Douglas); id. at 285-87 (Justices Stewart and Blackmun and Chief Justice Burger).
- ↑ E.g., Holden v. Hardy, 169 U.S. 366, 380 (1898) (statute limiting hours of labor in mines); Williams v. Fears, 179 U.S. 270, 274 (1900) (statute taxing the business of hiring persons to labor outside the state); Wilmington Mining Co. v. Fulton, 205 U.S. 60, 73 (1907) (statute requiring employment of only licensed mine managers and examiners and imposing liability on the mine owner for failure to furnish a reasonably safe place for workmen); Heim v. McCall, 239 U.S. 175 (1915); Crane v. New York, 239 U.S. 195 (1915) (statute restricting employment on state public works to citizens of the United States, with a preference to citizens of the state); Mo. Pac. Ry. v. Castle, 224 U.S. 541 (1912) (statute making railroads liable to employees for injuries caused by negligence of fellow servants and abolishing the defense of contributory negligence); W. Union Tel. Co. v. Milling Co., 218 U.S. 406 (1910) (statute prohibiting a stipulation against liability for negligence in delivery of interstate telegraph messages); Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 139 (1873); In re Lockwood, 154 U.S. 116 (1894) (refusal of state court to license a woman to practice law); Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879) (law taxing a debt owed a resident citizen by a resident of another state and secured by mortgage of land in the debtor's state); Bartemeyer v. Iowa, 85 U.S. (18 Wall.) 129 (1874); Mugler v. Kansas, 123 U.S. 623 (1887); Crowley v. Christensen, 137 U.S. 86, 91 (1890); Giozza v. Tiernan, 148 U.S. 657 (1893) (statutes regulating the manufacture and sale of intoxicating liquors); In re Kemmler, 136 U.S. 436 (1890) (statute regulating the method of capital punishment); Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1874) (statute regulating the franchise to male citizens); Pope v. Williams, 193 U.S. 621 (1904) (statute requiring persons coming into a state to make a declaration of intention to become citizens and residents thereof before being permitted to register as voters); Ferry v. Spokane, P. & S. Ry., 258 U.S. 314 (1922) (statute restricting dower, in case wife at time of husband's death is a nonresident, to lands of which he died seized); Walker v. Sauvinet, 92 U.S. 90 (1876) (statute restricting right to jury trial in civil suits at common law); Presser v. Illinois, 116 U.S. 252, 267 (1886) (statute restricting drilling or parading in any city by any body of men without license of the governor); Maxwell v. Dow, 176 U.S. 581, 596, 597-98 (1900) (provision for prosecution upon information, and for a jury (except in capital cases) of eight persons); New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 71 (1928) (statute penalizing the becoming or remaining a member of any oathbound association--other than benevolent orders, and the like--with knowledge that the association has failed to file its constitution and membership lists); Palko v. Connecticut, 302 U.S. 319 (1937) (statute allowing a state to appeal in criminal cases for errors of law and to retry the accused); Breedlove v. Suttles, 302 U.S. 277 (1937) (statute making the payment of poll taxes a prerequisite to the right to vote); Madden v. Kentucky, 309 U.S. 83, 92-93 (1940), (overruling Colgate v. Harvey, 296 U.S. 404, 430 (1935)) (statute whereby deposits in banks outside the state are taxed at 50¢ per $100); Snowden v. Hughes, 321 U.S. 1 (1944) (the right to become a candidate for state office is a privilege of state citizenship, not national citizenship); MacDougall v. Green, 335 U.S. 281 (1948) (Illinois Election Code requirement that a petition to form and nominate candidates for a new political party be signed by at least 200 voters from each of at least fifty of the 102 counties in the State, notwithstanding that 52% of the voters reside in only one county and 87% in the forty-nine most populous counties); New York v. O'Neill, 359 U.S. 1 (1959) (Uniform Reciprocal State Law to secure attendance of witnesses from within or without a state in criminal proceedings); James v. Valtierra, 402 U.S. 137 (1971) (a provision in a state constitution to the effect that low-rent housing projects could not be developed, constructed, or acquired by any state governmental body without the affirmative vote of a majority of those citizens participating in a community referendum).
- ↑ 332 U.S. 633, 640 (1948).
- ↑ Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (codified as amended at 42 U.S.C. § 1982).
- ↑ See Fourteenth Amend., Sec. 1: Overview of Fundamental Rights to Fourteenth Amend., Sec. 1: Interstate Travel as a Fundamental Right.
- ↑ Saenz v. Roe, 526 U.S. 489 (1999).
- ↑ 526 U.S. at 525 (Thomas, J., dissenting).
- ↑ The right of United States citizens to choose their state of residence is specifically protected by the first sentence of the Fourteenth Amendment "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
- ↑ Fourteenth Amendment Equal Protection and Other Rights.
- ↑ For discussion of the Fifth Amendment's Due Process Clause, see Fifth Amend.: Overview of Due Process.
- ↑ See Fourteenth Amend., Sec. 1: Overview of Procedural Due Process to Fourteenth Amend., Sec. 1: Protective Commitment and Due Process.
- ↑ See Fourteenth Amend., Sec. 1: Overview of Substantive Due Process to Fourteenth Amend., Sec. 1: Civil Commitment and Substantive Due Process.
- ↑ See Fourteenth Amend., Sec. 1: Overview of Incorporation of the Bill of Rights.
- ↑ Among numerous other examples, see, e.g.,