pensioner to the terms of an act under which he received his pension
from the Government, the Court answered: "Pensions are the bounties of
the government, which Congress has the right to give, withhold,
distribute or recall, at its discretion." United States _v._ Teller, 107
U.S. 64, 68. Can it be doubted that Congress has power to repeal at any
time the protection which present legislation affords organized labor?
[210] 339 U.S. 382, 394, 397 (1950).
[211] Dennis _v._ United States, 341 U.S. 494 (1951).
[212] 54 Stat. 670 (1940).
[213] 341 U.S. 494, 509.
[214] Ibid. 509.
[215] Ibid. 510; citing 183 F. (2d) at 212.
[216] 341 U.S. 494, 510-511.
[217] Ibid. 513.
[218] 341 U.S. 494, 519-520.
[219] Ibid. 525.
[220] Ibid. 527-528.
[221] 341 U.S. 494, 539.
[222] 268 U.S. 652 (1925).
[223] 341 U.S. 494, 541.
[224] Ibid. 542.
[225] Ibid. 551-552.
[226] 341 U.S. 494, 567-569.
[227] Ibid. 572.
[228] 341 U.S. 494, 586; citing 274 U.S. 357, 376-377.
[229] Anti-Fascist Committee _v._ McGrath, 341 U.S. 123 (1951) heads the
list.
[230] 341 U.S. 494 (1951).
[231] 339 U.S. 382; ibid. 846 (1950).
[232] 341 U.S. 716 (1951).
[233] 342 U.S. 485 (1952).
[234] New York Laws, 1949, c. 360.
[235] 342 U.S. 485, 493. Justice Frankfurter dissented on jurisdictional
grounds. Justices Black and Douglas attacked the merits of the decision.
Said the latter: "What happens under this law is typical of what happens
in a police state. Teachers are under constant surveillance; their pasts
are combed for signs of disloyalty; their utterances are watched for
clues to dangerous thoughts. A pall is cast over the classrooms. There
can be no real academic freedom in that environment. Where suspicion
fills the air and holds scholars in line for fear of their jobs, there
can be no exercise of the free intellect. Supineness and dogmatism take
the place of inquiry. A 'party line'--as dangerous as the 'party line'
of the Communists--lays hold. It is the 'party line' of the orthodox
view, of the conventional thought, of the accepted approach. A problem
can no longer be pursued with impunity to its edges. Fear stalks the
classroom. The teacher is no longer a stimulant to adventurous thinking;
she becomes instead a pipe line for safe and sound information. A
deadening dogma takes the place of free inquiry. Instruction tends to
become sterile; pursuit of knowledge is discouraged; discussion often
leaves off where it should begin." Ibid. 510.
[236] 343 U.S. 250 (1952).
[237] Ibid. 258.
[238] Ibid, 259-263 _passim_. Justice Douglas, dissenting, urged the
"absolute" character of freedom of speech and deplored recent cases in
which, he asserted, the Court "has engrafted the right of regulation
onto the First Amendment by placing in the hands of the legislative
branch the right to regulate 'within reasonable length' the right of
free speech. This to me is an ominous and alarming trend." Ibid. 285.
Justices Black, Reed and Jackson also dissented. Justice Jackson's
dissenting opinion is characteristically paradoxical: "An Illinois Act,
construed by its Supreme Court to be a 'group libel' statute, has been
used to punish criminally the author and distributor of an obnoxious
leaflet attacking the Negro race. He answers that, as applied, the Act
denies a liberty secured to him by the Due Process Clause of the
Fourteenth Amendment. What is the liberty which that clause underwrites?
The spectrum of views expressed by my seniors shows that disagreement as
to the scope and effect of this Amendment underlies this, as it has many
another, division of the Court. All agree that the Fourteenth amendment
does confine the power of the State to make printed words criminal.
Whence we are to derive metes and bounds of the state power is a subject
to the confusion of which, I regret to say, I have
contributed--comforted in the acknowledgment, however, by recalling that
this Amendment is so enigmatic and abstruse that judges more experienced
than I have had to reverse themselves as to its effect on state power.
The thesis now tendered in dissent is that the 'liberty' which the Due
Process Clause of the Fourteenth Amendment protects against denial by
the States is the literal and identical 'freedom of speech or of the
press' which the First Amendment forbids only Congress to abridge. The
history of criminal libel in America convinces me that the Fourteenth
Amendment did not 'incorporate' the First, that the powers of Congress
and of the States over this subject are not of the same dimensions, and
that because Congress probably could not enact this law it does not
follow that the States may not." Ibid. 287-288. Proceeding from this
position, Justice Jackson is able, none the less, to dissent from the
Court's judgment. _Cf._ Chief Justice Stone's position in United States
_v._ Carolene Products Co., 304 U.S. 144, at 152-53, note 4 (1938).
[239] 20 Stat. 355, 358 (1879); 48 Stat. 928 (1934).
[240] 327 U.S. 146 (1946).
[241] Ibid. 158. Justice Frankfurter, while concurring, apparently
thought that the question of Congress's power in the premises was not
involved. Ibid. 159-160. On this broader question, _see_ p. 269. (The
Postal Clause).
[242] 333 U.S. 178 (1948); Public Clearing House _v._ Coyne, 194 U.S.
497 (1904).
[243] Here it is recited in part: "That if we, our justiciary, our
bailiffs, or any of our officers, shall in any circumstances have failed
in the performance of them toward any person, or shall have broken
through any of these articles of peace and security, and the offence be
notified to four barons chosen out of the five-and-twenty before
mentioned, the said four barons shall repair to us, or our justiciary,
if we are out of the realm, and laying open the grievance, shall
petition to have it redressed without delay."
[244] 12 Encyclopedia of the Social Sciences, 98 ff, "Petition, Right
of" (New York, 1934).
[245] United States _v._ Cruikshank, 92 U.S. 542, 552 (1876) reflects
this older view.
[246] De Jonge _v._ Oregon, 299 U.S. 353, 364, 365 (1937). _See also_
Herndon _v._ Lowry, 301 U.S. 242 (1937).
[247] For the details of Adams' famous fight on "The Gag Rule," _see_
Andrew C. McLaughlin, A Constitutional History of the United States, pp.
478-481, Appleton-Century-Crofts, Inc., New York (1935).
[248] Rules and Manual United States House of Representatives (1949),
Eighty-first Congress, by Lewis Deschler, Parliamentarian, United States
Government Printing Office, Washington (1949), pp. 430-433.
[249] United States _v._ Baltzer, Report of the Attorney General, 1918,
p. 48.
[250] 92 U.S. 542 (1876).
[251] 16 Stat. 141 (1870).
[252] 92 U.S. 542, 552-553 (1876). At a later point in its opinion the
Court used the following language: "Every republican government is in
duty bound to protect all its citizens in the enjoyment of an equality
of right. That duty was originally assumed by the States; and it still
remains there. The only obligation resting upon the United States is to
see that the States do not deny the right. This the Amendment
guarantees, but no more. The power of the national government is limited
to the enforcement of this guaranty." Ibid. 555. These words have
reference, quite clearly, to counts of the indictment alleging acts of
the conspirators denying "equal protection of the laws" "to persons of
color," Congress's power to protect which is derived from Amendment XIV
and is confined as the Court says, to protection against State acts. The
above quoted words have, however, caused confusion. _See_ pp. 1176-1177.
[253] Hague _v._ C.I.O., 307 U.S. 496 (1939).
[254] 49 Stat. 449 (1935).
[255] 307 U.S. 496, 515-516 (1939).
[256] Ibid. 525.
[257] "As to the American Civil Liberties Union, which is a corporation,
it cannot be said to be deprived of the civil rights of freedom of
speech and of assembly, for the liberty guaranteed by the due process
clause is the liberty of natural, not artificial, persons. Northwestern
Nat. L. Ins. Co. _v._ Riggs, 203 U.S. 243, 255; Western Turf Asso. _v._
Greenberg, 204 U.S. 359, 363;" 307 U.S. 496, 527 (1939). _See also_
ibid. 514.
[258] 167 U.S. 43 (1897). This case was treated above, at p. 784.
[259] 314 U.S. 252 (1941).
[260] 323 U.S. 516 (1945).
[261] Auto Workers _v._ Wis. Board, 336 U.S. 245 (1949).
[262] Collins _v._ Hardyman, 341 U.S. 651 (1951); 17 Stat. 13, 8 U.S.C.
Sec. 47 (3).
[263] 341 U.S. 651, 663 (1951).
[264] 2 U.S.C. Sec. 261-270. _See also:_ General Interim Report of the
House Select Committee on Lobbying Activities, Eighty-First Congress,
Second Session, created pursuant to H. Res. 298, October 20, 1950,
United States Government Printing Office, Washington (1950): _see also_
9 Encyclopedia of the Social Sciences 567, "Lobbying."
[265] National Association of Manufacturers _v._ McGrath, 103 F. Supp.
510 (1952). Upon review, the Supreme Court vacated this judgment as
moot.--334 U.S. 804, 807.
[266] Rumely _v._ United States, 197 F. 2d 166, 174-175 (1952).
AMENDMENT 2
BEARING ARMS
Amendment 2
A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms shall not be
infringed.
The protection afforded by this amendment prevents infringement by
Congress of the right to bear arms for a lawful purpose, but does not
apply to such infringement by private citizens. For this reason an
indictment under the Enforcement Act of 1870,[1] charging a conspiracy
to prevent Negroes from bearing arms for lawful purposes was held
defective.[2] A State statute which forbids bodies of men to associate
together as military organizations, or to drill or parade with arms in
cities and towns unless authorized by law, does not abridge the right of
the people to keep and bear arms.[3] In the absence of evidence tending
to show that possession or use of a shotgun having a barrel of less than
18 inches in length has some reasonable relationship to the preservation
or efficiency of a well regulated militia, the Court refused to hold
invalid a provision in the National Firearms Act[4] against the
transportation of unregistered shotguns in interstate commerce.[5]
Notes
[1] 16 Stat. 140 (1870).
[2] United States _v._ Cruikshank, 92 U.S. 542, 553 (1876).
[3] Presser _v._ Illinois, 116 U.S. 252, 265 (1886).
[4] 48 Stat. 1236 (1934).
[5] United States _v._ Miller, 307 U.S. 174 (1939).
AMENDMENT 3
QUARTERING SOLDIERS
Amendment 3
No Soldier shall, in time of peace be quartered in any house, without
the consent of the Owner, nor in time of war, but in a manner to be
prescribed by law.
"This amendment seems to have been thought necessary. It does not appear
to have been the subject of judicial exposition; and it is so thoroughly
in accord with all our ideas, that further comment is unnecessary."[1]
Notes
[1] Miller, Samuel F., The Constitution (1893), page 646.
AMENDMENT 4
SEARCHES AND SEIZURES
Page
Coverage of the amendment 823
Necessity, sufficiency and effect of warrants 825
Records, reports and subpoenas 825
Search and seizure incidental to arrest 828
Search of vehicles 830
Use of evidence 830
SEARCHES AND SEIZURES
Amendment 4
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
Coverage of the Amendment
This amendment denounces only such searches and seizures as are
"unreasonable," and is to be construed in the light of what was deemed
an unreasonable search and seizure when it was adopted and in a manner
to conserve public interests as well as the rights of individuals.[1] It
applies only to governmental action, not to the unlawful acts of
individuals in which the government has no part.[2] It has no reference
to civil proceedings for the recovery of debts; consequently, a distress
warrant issued by the Solicitor of the Treasury under an act of Congress
is not forbidden, though issued without support of an oath or
affirmation.[3] But the amendment is applicable to search warrants
issued under any statute, including revenue and tariff laws.[4]
Security "in their persons, houses, papers and effects" is assured to
the people by this article. Not only the search of a dwelling, but also
of a place of business,[5] a garage,[6] or a vehicle,[7] is limited by
its provisions. But open fields are not covered by the term "house";
they may be searched without a warrant.[8] A sealed letter deposited in
the mails may not be opened by the postal authorities without the
sanction of a magistrate.[9] The subpoena of private papers is subject
to its test of reasonableness.[10] Retention for use as evidence of a
letter voluntarily written by a prisoner, which, without threat or
coercion, came into the possession of prison officials under the
practice and discipline of the institution, is not prohibited.[11] Where
officers demand admission to private premises in the name of the law,
their subsequent explorations are searches within the meaning of the
Constitution, even though the occupant opens the door to admit them.[12]
A peremptory demand by federal officers that a person suspected of crime
open a locked room and hand over ration coupons kept there was held not
to amount to a seizure in view of the fact that the coupons were
government property which the custodian was under a duty to
surrender.[13] Neither wiretapping,[14] nor the use of a detectaphone to
listen to a conversation in an adjoining room,[15] nor interrogation
under oath by a government official of a person lawfully in
confinement[16] is within the purview of this article. Nor does it apply
to statements made by an accused on his own premises to an "undercover
agent" whose identity was not suspected and who had on his person a
radio transmitter which communicated the statements to another agent
outside the building.[17] Said Justice Jackson for the Court:
"Petitioner relies on cases relating to the more common and clearly
distinguishable problems raised where tangible property is unlawfully
seized. Such unlawful seizure may violate the Fourth Amendment, even
though the entry itself was by subterfuge or fraud rather than force.
But such decisions are inapposite in the field of mechanical or
electronic devices designed to overhear or intercept conversation, at
least where access to the listening post was not obtained by illegal
methods."[18] But narcotics seized in a hotel room during absence of the
owner, in the course of a search without warrant for either search or
arrest, were not adducible as evidence against the owner, who, however,
was not entitled to have them returned since they were legal
contraband.[19]
Necessity, Sufficiency and Effect of Warrants
A warrant of commitment by a justice of the peace must state a good
cause certain and be supported by oath.[20] A notary public is not
authorized to administer oaths in federal criminal proceedings; hence a
warrant based on affidavits verified before a notary is invalid.[21] A
warrant of the Senate for attachment of a person who ignored a subpoena
from a Senate committee is supported by oath within the requirement of
this amendment when based upon the committee's report of the facts of
the contumacy, made on the committee's own knowledge and having the
sanction of the oath of office of its members.[22]
A belief, however well founded, that an article sought is concealed in a
dwelling house furnishes no justification for a search without a
warrant.[23] A warrant issued upon an information stating only that
"affiant has good reason to believe and does believe" that defendant has
contraband materials in his possession is clearly bad under the Fourth
Amendment.[24] It is enough, however, if the apparent facts set out in
the affidavit are such that a reasonably discreet and prudent man would
be led to believe that the offense charged had been committed.[25]
The requirement of the Fourth Amendment that warrants shall particularly
describe the things to be seized makes general searches under them
impossible and prevents the seizure of one thing under a warrant
describing another. As to what is to be taken nothing is left to the
discretion of the officer executing the warrant.[26] Private papers of
no pecuniary value, in which the sole interest of the Federal Government
is their value as evidence against the owner in a contemplated criminal
prosecution, may not be taken from the owner's house or office under a
search warrant.[27]
Records, Reports and Subpoenas
Since the common law did not countenance compulsory self incrimination,
many years passed before the Supreme Court was called upon to interpret
the constitutional provisions bearing upon the privilege against such
testimonial compulsion. Not until Boyd _v._ United States[28] did it
have to meet the issue; there, pursuant to an act of Congress, a court
had issued an order in a proceeding for the forfeiture of goods for
fraudulent nonpayment of customs duties, requiring the claimant to
produce in court his invoices covering the goods, on pain of having the
allegation taken as confessed against him. The order and the statute
which authorized it were held unconstitutional in a notable opinion by
Justice Bradley, as follows: "Breaking into a house and opening boxes
and drawers are circumstances of aggravation; but any forcible and
compulsory extortion of a man's own testimony or of his private papers
to be used as evidence to convict him of crime or to forfeit his goods,
is [forbidden] * * * In this regard the Fourth and Fifth Amendments run
almost into each other."[29] Thus the case established three
propositions of far-reaching significance: (1) that a compulsory
production of the private papers of the owner in such a suit was a
search and seizure within the meaning of the Fourth Amendment;[30] (2)
that in substance such seizure compelled him to be a witness against
himself in violation of Amendment V,[31] and (3) that, because it was a
violation of the Fifth Amendment, it was also an _unreasonable_ search
and seizure under the Fourth.[32]
Only natural persons can resist the subpoena of private papers on the
ground of self incrimination.[33] Even an individual cannot refuse to
produce records which are in his custody on the plea that they might
incriminate the owner or himself where the documents belong to a
corporation,[34] or to a labor union.[35] A bankrupt can be compelled to
turn over records which are part of his estate.[36] Papers already in
the custody of a United States court in consequence of their having been
used by the owner himself as evidence on another proceeding may be used
before a grand jury as a basis for an indictment for perjury.[37] A
corporation may challenge an order for the production of records if it
is unreasonable on grounds other than self incrimination, i.e., if it is
too sweeping,[38] if the information sought is not relevant to any
lawful inquiry,[39] or if it represents "a fishing expedition" in quest
of evidence of crime.[40] In Oklahoma Press Pub. Co. _v._ Walling,[41]
the question of the protection afforded by the Constitution against the
subpoena of corporate records was thoroughly reviewed. Justice Rutledge
summarized the Court's views in the following words: "* * * the Fifth
Amendment affords no protection by virtue of the self incrimination
provision, whether for the corporation or for its officers; and the
Fourth, if applicable, at the most guards against abuse only by way of
too much indefiniteness or breadth in the things required to be
'particularly described,' if also the inquiry is one the demanding
agency is authorized by law to make and the materials specified are
relevant. The gist of the protection is in the requirement, expressed in
terms, that the disclosure sought shall not be unreasonable. * * * It
is not necessary, as in the case of a warrant, that a specific charge or
complaint of violation of law be pending or that the order be made
pursuant to one. It is enough that the investigation be for a lawfully
authorized purpose, within the power of Congress to command. * * * The
requirement of 'probable cause, supported by oath or affirmation,'
literally applicable in the case of a warrant is satisfied, in that of
an order for production, by the court's determination that the
investigation is authorized by Congress, is for a purpose Congress can
order, and the documents sought are relevant to the inquiry. Beyond this
the requirement of reasonableness, including particularity in
'describing the place to be searched, and the persons or things to be
seized,' also literally applicable to warrant, comes down to
specification of the documents to be produced adequate, but not
excessive, for the purposes of the relevant inquiry."[42]
As a means of enforcing a valid statute, the Government may require any
person subject thereto "to keep a record showing whether he has in fact
complied with it,"[43] and to submit that record to inspection by
government officers.[44] It may also compel the filing of returns
disclosing the amount of tax liability,[45] and of reports under oath
showing instances where employees have worked in excess of hours of
labor permitted by law.[46] Without violating either the Fourth or Fifth
Amendments, a judicial decree enjoining illegal practices under the
Antitrust Act may provide that the Department of Justice shall be given
access to all records and documents of the corporation relating to the
matter covered by the decree.[47] The Supreme Court has intimated,
however, that record keeping requirements must be limited to data which
are relevant to the effective administration of the law.[48]
Search and Seizure Incidental to Arrest
The right to search the person upon arrest has long been recognized[49]
but authority to search the premises upon which the arrest is made has
been approved only in recent years. In Agnello _v._ United States,[50]
the Supreme Court asserted that: "The right without a search warrant
contemporaneously to search persons lawfully arrested while committing
crime and to search the place where the arrest is made in order to find
and seize things connected with the crime as its fruits or as the means
by which it was committed, as well as weapons and other things to effect
an escape from custody, is not to be doubted."[51] Books and papers used
to carry on a criminal enterprise, which are in the immediate possession
and control of a person arrested for commission of an offense in the
presence of the officers may be seized when discovered in plain view
during a search of the premises following the arrest.[52] The lawful
arrest of persons at their place of business does not justify a search
of desks and files in the offices where the arrest is made and seizure
of private papers found thereon.[53] A search which is unlawfully
undertaken is not made valid by the evidence of crime which it brings to
light.[54]
By a five to four decision in Harris _v._ United States[55] the Court
sustained, as an incident to a lawful arrest, a five hour search by four
federal officers of every nook and cranny of a four-room apartment. It
also upheld the seizure of papers unrelated to the crime for which the
arrest was made, namely, Selective Service Registration cards which were
discovered in a sealed envelope in the bottom of a bureau drawer. In
justification of this conclusion, Chief Justice Vinson wrote: "Here the
agents entered the apartment under the authority of lawful warrants of
arrest. Neither was the entry tortious nor was the arrest which followed
in any sense illegal. * * * The search was not a general exploration but
was specifically directed to the means and instrumentalities by which
the crimes charged had been committed, particularly the two canceled
checks of the Mudge Oil Company. * * * If entry upon the premises be
authorized and the search which follows be valid, there is nothing in
the Fourth Amendment which inhibits the seizure by law-enforcement
agents of government property the possession of which is a crime, even
though the officers are not aware that such property is on the premises
when the search is initiated."[56] In a dissenting opinion in which
Justices Murphy and Rutledge concurred, Justice Frankfurter challenged
the major premises announced by the Court. "To derive from the common
law right to search the person as an incident of his arrest the right of
indiscriminate search of all his belongings, is to disregard the fact
that the Constitution protects [against] both unauthorized arrest and
unauthorized search. Authority to arrest does not dispense with the
requirement of authority to search. * * * But even if the search was
reasonable, it does not follow that the seizure was lawful. If the
agents had obtained a warrant to look for the canceled checks, they
would not be entitled to seize other items discovered in the process.
* * * The Court's decision achieves the novel and startling result of
making the scope of search without warrant broader than an authorized
search."[57] A more limited search in connection with an arrest was held
valid in United States _v._ Rabinowitz.[58] In that case, government
officers, armed with a valid warrant for arrest, had arrested respondent
in his one-room office which was open to the public. Thereupon, over his
objection, they searched the desk, safe and file cabinets in the office
for about an hour and a half and seized 573 forged and altered stamps.
Justice Minton assigned five reasons for holding that the search and
seizure was reasonable: "(1) the search and seizure were incident to a
valid arrest; (2) the place of the search was a business room to which
the public, including the officers, was invited; (3) the room was small
and under the immediate and complete control of respondent; (4) the
search did not extend beyond the room used for unlawful purposes; (5)
the possession of the forged and altered stamps was a crime, just as it
is a crime to possess burglars' tools, lottery tickets or counterfeit
money."[59] This decision also overruled an intermediate case, Trupiano
_v._ United States,[60] whereby the practical effect of the Harris
decision had been circumscribed by a ruling that even where a valid
arrest is made, a search without a warrant is not permissible if the
circumstances make it feasible to procure a warrant in advance.
Search of Vehicles
The Fourth Amendment has been construed "* * *, as recognizing a
necessary difference between a search of a store, dwelling house, or
other structure in respect of which a proper official warrant readily
may be obtained, and a search of a ship, motor boat, wagon, or
automobile for contraband goods, where is it not practicable to secure a
warrant because the vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant must be sought. * * * The measure of
legality of such a seizure is, therefore, that the seizing officer shall
have reasonable or probable cause for believing that the automobile
which he stops and seizes has contraband liquor therein which is being
illegally transported."[61] Where officers have reasonable grounds for
searching an automobile which they are following, a search of the
vehicle immediately after it has been driven into an open garage is
valid.[62] The existence of reasonable cause for searching an automobile
does not, however, warrant the search of an occupant thereof, although
the contraband sought is of a character which might be concealed on the
person.[63]
Use of Evidence
To remove the temptation to ignore constitutional restraints on search
and seizure, evidence obtained in violation thereof is made inadmissible
against an accused in federal courts.[64] This is contrary to the
practice prevailing in the majority of States and has been severely
criticized as a matter of principle.[65] The Court has intimated
recently that the federal exclusionary rule is not a command of the
Fourth Amendment, but merely a judicially created rule of evidence which
Congress could overrule. In Wolf _v._ Colorado,[66] it ruled that while
that amendment is binding on the States, it does not prevent State
courts from admitting evidence obtained by illegal search. With respect
to the federal rule, Justice Frankfurter said: "* * * though we have
interpreted the Fourth Amendment to forbid the admission of such
evidence, a different question would be presented if Congress, under its
legislative powers, were to pass a statute purporting to negate the
_Weeks_ doctrine. We would then be faced with the problem of the respect
to be accorded the legislative judgment on an issue as to which, in
default of that judgment, we have been forced to depend upon our
own."[67] This rule does not prevent the use of evidence unlawfully
obtained by individuals,[68] or by State officers,[69] unless federal
agents had a part in the unlawful acquisition,[70] or unless the arrest
and search were made for an offense punishable only by federal law.[71]
A search is deemed to be "a search by a federal official if he had a
hand in it; * * * [but not] if evidence secured by State authorities is
turned over to the federal authorities on a silver platter. The decisive
factor * * * is the actuality of a share by a federal official in the
total enterprise of securing and selecting evidence by other than
sanctioned means. It is immaterial whether a federal agent originated
the idea or joined in it while the search was in progress. So long as he
was in it before the object of the search was completely accomplished,
he must be deemed to have participated in it."[72] Samples of illicit
goods constituting part of a quantity seized by federal officials under
a valid search warrant may be used as evidence, whether or not the
officers become civilly liable as trespassers _ab initio_, by reason of
the fact that they unlawfully destroyed the remainder of the goods at
the time the seizure was made.[73]
In Silver Thorne Lumber Co. _v._. United States,[74] the Court refused
to permit the Government to subpoena corporate records of which it had
obtained knowledge by an unlawful search. To permit "knowledge gained by
the Government's own wrong" to be so used would do violence to the Bill
of Rights.[75] But a defendant in a civil antitrust suit may be required
to produce records which had been previously subpoenaed before a grand
jury, despite the fact that the grand jury was illegally constituted
because women were excluded from the panel.[76] Where government agents
lawfully obtained knowledge of the contents of a cancelled check during
examination of the records of a government contractor, the admission of
such check in evidence was held not to be an abuse of discretion even if
the seizure of the check itself was deemed illegal.[77] The seizure of
papers under a writ of replevin issued in a civil suit between private
persons does not violate the Fourth and Fifth Amendments.[78]
Notes
[1] Carroll _v._ United States, 267 U.S. 132, 147, 149 (1925).
[2] Burdeau _v._ McDowell, 256 U.S. 465, 475 (1921).
[3] Den ex dem. Murray _v._ Hoboken Land & Improv. Co., 18 How. 272, 285
(1856).
[4] Nathanson _v._ United States, 290 U.S. 41, 47 (1933)
[5] Gouled _v._ United States, 255 U.S. 298 (1921).
[6] Taylor _v._ United States, 286 U.S. 1 (1932).
[7] Carroll _v._ United States, 267 U.S. 132 (1925).
[8] Hester _v._ United States, 265 U.S. 57 (1924).
[9] Ex parte Jackson, 96 U.S. 727, 733 (1878).
[10] Boyd _v._ United States, 116 U.S. 616 (1886); Hale _v._ Henkel, 201
U.S. 43 (1906).
[11] Stroud _v._ United States, 251 U.S. 15, 21 (1919).
[12] Amos _v._ United States, 255 U.S. 313 (1921); Johnson _v._ United
States, 333 U.S. 10 (1948).
[13] Davis _v._ United States, 328 U.S. 582 (1946).
[14] Olmstead _v._ United States, 277 U.S. 438 (1928). _Cf._ Nardone
_v._ United States, 302 U.S. 379 (1937); 308 U.S. 338 (1939).
[15] Goldman _v._ United States, 316 U.S. 129 (1942).
[16] Bilokumsky _v._ Tod, 203 U.S. 149, 155 (1923).
[17] On Lee _v._ United States, 343 U.S. 747 (1952).
[18] Ibid. 753. Four Justices dissented, relying in the main on the
dissent in the Olmstead case, which came later to be adopted by
Congress. _See_ note 10 above. [Transcriber's Note: Reference is to
Footnote 14, above.]
[19] United States _v._ Jeffers, 342 U.S. 48 (1951).
[20] Ex parte Burford, 3 Cr. 448 (1806).
[21] Albrecht _v._ United States, 273 U.S. 1 (1927).
[22] McGrain _v._ Daugherty, 273 U.S. 135, 156, 158 (1927).
[23] Agnello _v._ United States, 269 U.S. 20 (1925).
[24] Byars _v._ United States, 273 U.S. 28, 29 (1927).
[25] Steele _v._ United States, No. 1, 267 U.S. 498, 504, 505 (1925);
Dumbra _v._ United States, 268 U.S. 435, 441 (1925).
[26] Marron _v._ United States, 275 U.S. 192, 196 (1927).
[27] Gouled _v._ United States, 255 U.S. 298 (1921).
[28] 116 U.S. 616 (1886).
[29] Ibid. 630.
[30] Ibid. 634, 635.
[31] Ibid. 633.
[32] Ibid. 635.
[33] Hale _v._ Henkel, 201 U.S. 43, 74 (1906); Essgee Co. _v._ United
States, 262 U.S. 151 (1923). _Cf._ Interstate Commerce Commission _v._
Baird, 194 U.S. 25, 46 (1904).
[34] Wilson _v._ United States, 221 U.S. 361 (1911). _See also_ Wheeler
_v._ United States, 226 U.S. 478 (1913); Grant _v._ United States, 227
U.S. 74 (1913).
[35] United States _v._ White, 322 U.S. 694 (1944).
[36] Re Fuller, 262 U.S. 91 (1923). _See also_ McCarthy _v._ Arndstein,
266 U.S. 34, 41 (1924).
[37] Perlman _v._ United States, 247 U.S. 7 (1918).
[38] Hale _v._ Henkel, 201 U.S. 43, 76 (1906).
[39] Oklahoma Press Pub. Co. _v._ Walling, 327 U.S. 186, 208 (1946).
[40] Federal Trade Commission _v._ American Tobacco Co. 264 U.S. 298,
305-306 (1924).
[41] 327 U.S. 186 (1946).
[42] Ibid. 208-209.
[43] United States _v._ Darby, 312 U.S. 100, 125 (1941).
[44] Shapiro _v._ United States, 335 U.S. 1, 32 (1918).
[45] Flint _v._ Stone Tracy Co., 220 U.S. 107, 175 (1911).
[46] Baltimore & O.R. Co. _v._ Interstate Commerce Comm'n., 21 U.S. 612
(1911).
[47] United States _v._ Bausch & L. Optical Co., 321 U.S. 707, 725
(1944). _Cf._ United States _v._ Morton Salt Co., 338 U.S. 632 (1950).
[48] Shapiro _v._ United States, 335 U.S. 1, 32 (1948); Oklahoma Press
Pub. Co. _v._ Walling, 327 U.S. 186, 208 (1946).
[49] Weeks _v._ United States, 232 U.S. 383, 392 (1914).
[50] 269 U.S. 20 (1925).
[51] Ibid. 30.
[52] Marron _v._ United States, 275 U.S. 192 (1927).
[53] Go-Bart Importing Co. _v._ United States, 282 U.S. 344 (1931);
United States _v._ Lefkowitz, 285 U.S. 452 (1932).
[54] Byars _v._ United States, 273 U.S. 28 (1927); Johnson _v._ United
States, 333 U.S. 10, 16 (1948).
[55] 331 U.S. 145 (1947).
[56] Ibid. 153, 155.
[57] Ibid. 165. Separate dissenting opinions were written by Justices
Murphy and Jackson.
[58] 339 U.S. 56 (1950).
[59] Ibid. 64.
[60] 334 U.S. 699 (1948); McDonald _v._ United States, 335 U.S. 451
(1948) is also overruled in effect, although it was not mentioned in the
Court's opinion.
[61] Carroll _v._ United States, 267 U.S. 132, 153-156 (1925). Husty
_v._ United States, 282 U.S. 694 (1931); Brinegar _v._ United States,
338 U.S. 160 (1949).
[62] Scher _v._ United States, 305 U.S. 251 (1938).
[63] United States _v._ Di Re, 332 U.S. 581 (1948).
[64] Weeks _v._ United States, 232 U.S. 383 (1914). This case was a
virtual repudiation of Adams _v._ New York, 192 U.S. 585, 597 (1904).
There the Supreme Court had ruled that in criminal proceedings in a
State court the use of private papers obtained by unlawful search and
seizure "was no violation of the constitutional guaranty of privilege
from unlawful search or seizure." It added: "Nor do we think the accused
was compelled to incriminate himself."
[65] Wolf _v._ Colorado, 338 U.S. 25, 29, 38 (1949); 8 Wigmore on
Evidence (3d ed.) Sec. 2184 (1940).
[66] 338 U.S. 25 (1949).
[67] Ibid. 33.
[68] Burdeau _v._ McDowell, 256 U.S. 465 (1921).
[69] Byars _v._ United States, 273 U.S. 28, 33 (1927).
[70] Ibid. 32; Lustig _v._ United States, 338 U.S. 74 (1949).
[71] Gambino _v._ United States, 275 U.S. 310 (1927).
[72] Lustig _v._ United States, 338 U.S. 74, 78, 79 (1949).
[73] McGuire _v._ United States, 273 U.S. 95 (1927).
[74] 251 U.S. 385 (1920).
[75] Ibid. 392.
[76] United States _v._ Wallace & Tiernan Co., 336 U.S. 793 (1949).
[77] Zap _v._ United States, 328 U.S. 624 (1946).
[78] American Tobacco Co. _v._ Werckmeister, 207 U.S. 284, 302 (1907).
AMENDMENT 5
RIGHTS OF PERSONS
Page
Rights of accused persons 837
The grand jury clause 837
Double jeopardy 838
Self-incrimination 841
Source of the clause 841
Due process of law 844
Source and evolution of the meaning of the term 844
Scope of the guaranty 846
Procedural due process 846
General 846
Criminal prosecutions 847
Notice and hearing 847
Evidence and presumption in judicial proceedings 848
Administrative proceedings 849
Fair hearing 849
Judicial review 850
Aliens 851
Deportation 852
Substantive due process 853
Discrimination 853
Deprivation of liberty 854
Deprivation of property 855
Retroactive legislation sustained 855
Retroactive legislation disallowed 857
Bankruptcy legislation 857
Right to sue the government 858
Congressional police measures 859
The postal service 859
Regulation of public utilities 860
Regulation of railroads 861
Taxation 862
Retroactive taxes 863
Governance of the Indians 864
The national eminent domain power 864
Scope of power 864
Alien property 865
Public use 865
Rights for which compensation must be made 866
When property is taken 867
Navigable waters 867
Just compensation 869
Interest 871
Enforcement of right to compensation 872
RIGHTS OF PERSONS
Amendment 5
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public use,
without just compensation.
Rights of Accused Persons
THE GRAND JURY CLAUSE
Within the meaning of this article a crime is made "infamous" by the
quality of the punishment which may be imposed.[1] The Court has
recognized that: "What punishments shall be considered as infamous may
be affected by the changes of public opinion from one age to
another."[2] Imprisonment in a State prison or penitentiary, with or
without hard labor,[3] or imprisonment at hard labor in the workhouse of
the District of Columbia,[4] falls within this category. The pivotal
question is whether the offense is one for which the Court is authorized
to award such punishment; the sentence actually imposed is immaterial.
When an accused is in danger of being subjected to an infamous
punishment if convicted, he has the right to insist that he shall not be
put upon his trial, except on the accusation of a grand jury.[5] Thus,
an act which authorizes imprisonment at hard labor for one year, as well
as deportation, of Chinese aliens found to be unlawfully within the
United States, creates an offense which can be tried only upon
indictment.[6] Counterfeiting,[7] fraudulent alteration of poll
books,[8] fraudulent voting,[9] and embezzlement[10] have been declared
to be infamous crimes. It is immaterial how Congress has classified the
offense.[11] An act punishable by a fine of not more than $1,000 or
imprisonment for not more than six months is a misdemeanor, which can
be tried without indictment, even though the punishment exceeds that
specified in the statutory definition of "petty offenses."[12]
A person can be tried only upon the indictment as found by the grand
jury, and especially upon its language found in the charging part of the
instrument. A change in the indictment deprives the court of the power
to try the accused.[13] There is no constitutional requirement that an
indictment be presented by a grand jury in a body; an indictment
delivered by the foreman in the absence of the other grand jurors is
valid.[14]
The words "when in actual service in time of war or public danger" apply
to the militia only. All persons in the regular army or navy are subject
to court martial rather than indictment or trial by jury, at all
times.[15] The exception of "cases arising in the land or naval forces"
was not aimed at trials of offenses against the laws of war. Its
objective was to authorize trial by court martial of the members of the
Armed Forces for all that class of crimes which under the Fifth and
Sixth Amendments might otherwise have been deemed triable in the civil
court. Either citizen or alien enemy belligerents may be tried by a
military commission for offenses against the laws of war.[16]
DOUBLE JEOPARDY
By the common law not only was a second punishment for the same offense
prohibited, but a second trial was forbidden whether or not the accused
had suffered punishment, or had been acquitted or convicted.[17] This
clause embraces all cases wherein a second prosecution is attempted for
the same violation of law, whether felony or misdemeanor.[18]
Seventy-five years ago a closely divided Court held that the protection
against double jeopardy prevented an appeal by the Government after a
verdict of acquittal.[19] A judgment of acquittal on the ground of the
bar of the statute of limitations is a protection against a second
trial,[20] as is also a general verdict of acquittal upon an issue of
not guilty to an indictment which was not challenged as insufficient
before the verdict.[21] Where a court inadvertently imposed both a fine
and imprisonment for a crime for which the law authorized either
punishment, but not both, it could not, after the fine had been paid,
during the same term of court, change its judgment by sentencing the
defendant to imprisonment.[22] But where a statute carried a minimum
mandatory sentence of both a fine and imprisonment, the imposition of
the minimum fine five hours after the court had erroneously sentenced
the defendant to imprisonment only did not amount to double
jeopardy.[23] Whether or not the discontinuance of a trial without a
verdict bars a second trial depends upon the circumstances of each
case.[24] Discharge of a jury because it is unable to reach an
agreement[25] or because of the disqualification of a juror[26] does not
preclude a second trial. Where, after a demurrer to the indictment was
overruled, a jury was impaneled and witnesses sworn, the discharge of
the jury to permit the defendant to be arraigned did not bar a trial
before a new jury.[27] The withdrawal of charges after a trial by a
general court martial had begun, because the tactical situation brought
about by the rapid advance of the army made continuance of the trial
impracticable, did not bar a trial before a second court martial.[28] An
accused is not put in jeopardy by preliminary examination and discharged
by the examining magistrate,[29] by an indictment which is quashed,[30]
nor by arraignment and pleading to the indictment.[31] In order to bar
prosecution, a former conviction must be pleaded.[32]
A plea of former jeopardy must be upon a prosecution for the same
identical offense.[33] The test of identity of offenses is whether the
same evidence is required to sustain them; if not, the fact that both
charges relate to one transaction does not make a single offense where
two are defined by the statutes.[34] Where a person is convicted of a
crime which includes several incidents, a second trial for one of those
incidents puts him twice in jeopardy.[35] Congress may impose both
criminal and civil sanctions with respect to the same act or
omission,[36] and may separate a conspiracy to commit a substantive
offense from the commission of the offense and affix to each a different
penalty.[37] A conviction for the conspiracy may be had though the
subsequent offense was not completed.[38] Separate convictions under
different counts charging a monopolization and a conspiracy to
monopolize trade, in an indictment under the Sherman Antitrust Act, do
not amount to double jeopardy.[39] In United States _v._ National
Association of Real Estate Boards,[40] the Court held that an acquittal
in a criminal suit charging violation of the Sherman Act does not
prevent the issuance of an injunction against future violations. It
distinguished but did not overrule an early case which held that where
an issue as to the existence of a fact or act had been tried in a
criminal proceeding instituted by the United States, a judgment of
acquittal, was conclusive in a subsequent proceeding _in rem_ involving
the same matter.[41]
A civil action to recover taxes which were in fact penalties for
violation of another statute was held to be punitive in character and
barred by a prior conviction of the defendant for a criminal offense
involving the same transaction.[42] In contrast, the additional income
tax imposed when a fraudulent return is filed, was found to be a civil
sanction designed to protect the revenue, which might be assessed after
acquittal of the defendant for the same fraud.[43] A forfeiture
proceeding for defrauding the Government of a tax on alcohol diverted to
beverage uses is a proceeding _in rem_, rather than a punishment for a
criminal offense, and may be prosecuted after a conviction of conspiracy
to violate the statute imposing the tax.[44]
In an early case, the Court asserted that since robbery on the high seas
is considered an offense within the criminal jurisdiction of all
nations, the plea of _autre fois acquit_ would be good in any civilized
State, though resting on a prosecution instituted in the courts of any
other civilized State.[45] It has held, however, that where the same act
is an offense against both the State and Federal Governments, its
prosecution and punishment by both Governments is not double
jeopardy.[46] A contumacious witness is not twice subjected to jeopardy
for refusing to testify before a committee of the United States Senate,
by being punished for contempt of the Senate and also indicted for a
misdemeanor for such refusal.[47]
Self-Incrimination
SOURCE OF THE CLAUSE
"Nor shall be compelled in any criminal case to be a witness against
himself." The source of this clause was the maxim that "no man is bound
to accuse himself (_nemo tenetur prodere_--or _accusare seipsum_),"
which was brought forward in England late in the sixteenth century in
protest against the inquisitorial methods of the ecclesiastical courts.
At that time the common law itself permitted accused defendants to be
questioned. What the advocates of the maxim meant was merely that a
person ought not to be put on trial and compelled to answer questions to
his detriment unless he had first been properly accused, i.e., by the
grand jury. But the idea once set going gained headway rapidly,
especially after 1660, when it came to have attached to it most of its
present-day corollaries.[48]
Under the clause a _witness_ in any proceeding whatsoever in which
testimony is legally required may refuse to answer any question, his
answer to which might be used against him in a future criminal
proceeding, or which might uncover further evidence against him.[49] The
witness must explicitly claim his constitutional immunity or he will be
considered to have waived it;[50] but he is not the final judge of the
validity of his claim.[51] The privilege exists solely for the
protection of the witness himself, and may not be claimed for the
benefit of third parties.[52] The clause does not impair the obligation
of a witness to testify if a prosecution against him is barred by lapse
of time, by statutory enactment, or by a pardon;[53] but the effect of
a mere tender of pardon by the President remains uncertain.[54] A
witness may not refuse to answer questions on the ground that he would
thereby expose himself to prosecution by a state.[55] Conversely, the
admission against a defendant in a federal court of testimony given by
him in a state court under a statute of immunity is valid.[56] If an
accused takes the stand in his own behalf, he must submit to
cross-examination;[57] while if he does not, it is by no means certain
that the trial judge in a federal court may not, without violation of
the clause, draw the jury's attention to the fact.[58] Neither does the
Amendment preclude the admission in evidence against an accused of a
confession made while in the custody of officers, if the confession was
made freely, voluntarily, and without compulsion or inducement of any
sort.[59] But in McNabb _v._ United States the Court[60] reversed a
conviction in a federal court, based on a confession obtained by
questioning the defendants for prolonged periods in the absence of
friends and counsel and without their being brought before a
commissioner or judicial officer, as required by law. Without purporting
to decide the constitutional issue, Justice Frankfurter's opinion urged
the duty of the Court, in supervising the conduct of the lower federal
courts, to establish and maintain "civilized standards of procedure and
evidence."[61] An individual who has acquired income by illicit means is
not excused from making out an income tax return because he might
thereby expose himself to a criminal prosecution by the United States.
"He could not draw a conjurer's circle around the whole matter," said
Justice Holmes, "by his own declaration that to write any word upon the
government blank would bring him into danger of the law."[62] But a
witness called to testify before a federal grand jury as to his
relations with the Communist Party cannot, in view of existing
legislation touching the subject, be compelled to answer.[63]he clause
does not require the exclusion of the body of an accused as evidence of
his identity;[64] but the introduction into evidence against one who was
being prosecuted by a State for illegal possession of morphine of two
capsules which he had swallowed and had then been forced by the police
to disgorge, was held to violate due process of law.[65]
A bankrupt is not deprived of his constitutional right not to testify
against himself by an order requiring him to surrender his books to a
duly authorized receiver.[66] He may not object to the use of his books
and papers as incriminating evidence against him while they are in the
custody of the bankruptcy court;[67] nor may he condition their delivery
by requiring a guaranty that they will not be used as incriminating
evidence.[68] The filing of schedules by a bankrupt does not waive his
right to refuse to answer questions pertaining to them when to do so may
incriminate him.[69] A disclosure, not amounting to an actual admission
of guilt or of incriminating facts, does not deprive him of the
privilege of stopping short in his testimony whenever it may fairly tend
to incriminate him.[70] The rule against self-incrimination may be
invoked by a bankrupt (in the absence of any statute affording him
complete immunity) when being examined concerning his estate.[71]
The privilege of witnesses, being a purely personal one, may not be
claimed by an agent or officer of a corporation either in its behalf or
in his own behalf as regards books and papers of the corporation;[72]
and the same rule holds in the case of the custodian of the records of a
labor union;[73] nor does the Communist Party enjoy any immunity as to
its books and records.[74] Finally, this Amendment, in connection with
the interdiction of the Fourth Amendment against unreasonable searches
and seizures, protects an individual from the compulsory production of
private papers which would incriminate him.[75] The scope of this latter
privilege was, however, greatly narrowed by the decision in Shapiro _v._
United States.[76] There, by a five-to-four majority, the Court held
that the privilege against self incrimination does not extend to books
and records which an individual is required to keep to evidence his
compliance with lawful regulations. A conviction for violation of OPA
regulations was affirmed, as against the contention that the prosecution
was barred because the accused had been compelled over claim of
constitutional immunity to produce records he was required to keep under
applicable OPA orders. After construing the statutory immunity as
inapplicable to the case, Chief Justice Vinson disposed of the
constitutional objections by asserting that "the privilege which exists
as to private papers cannot be maintained in relation to 'records
required by law to be kept in order that there may be suitable
information of transactions which are the appropriate subjects of
governmental regulation and the enforcement of restrictions validly
established.'"[77]
Due Process of Law
SOURCE AND EVOLUTION OF THE MEANING OF THE TERM
The phrase "due process of law" comes from chapter 3 of 28 Edw. III
(1355), which reads: "No man of what state or condition he be, shall be
put out of his lands or tenements nor taken, nor disinherited, nor put
to death, without he be brought to answer by due process of law." This
statute, in turn, harks back to the famous chapter 29 of Magna Carta
(issue of 1225), where the King promises that "no free man (_nullus
liber homo_) shall be taken or imprisoned or deprived of his freehold or
his liberties or free customs, or outlawed or exiled, or in any manner
destroyed, nor shall we come upon him or send against him, except by a
legal judgment of his peers or by the law of the land (_per legem
terrae_)." Coke in Part II of his Institutes, which was the source from
which the founders of the American Constitutional System derived their
understanding of the matter, equates the term "by law of the land" with
"by due process of law," which he in turn defines as "by due process of
the common law," that is "by the indictment or presentment of good and
lawful men * * * or by writ original of the Common Law."[78] The
significance of both terms was therefore purely procedural; the term
"writ original of the common law" referring to the writs on which civil
actions were brought into the King's courts; and this is the
significance they clearly have in the State constitutions. In the
earlier of such instruments the term "law of the land" was the form
preferred, but following the adoption of Amendment V "due process of
law" became the vogue with constitution draftsmen. Some State
constitutions even today employ both terms. Whichever phraseology is
used always occurs in close association with other safeguards of accused
persons, just as does the clause here under discussion in Amendment V.
As a limitation, therefore, on legislative power the due process clause
originally operated simply to place certain procedures, and especially
the grand jury-petit jury process, beyond its reach, but this did not
remain its sole importance or its principal importance.[79]
Today the due process clause in Amendment V, in Amendment XIV, and in
the State constitutions is important chiefly, not as consecrating
certain procedures, but as limiting the substantive content of
legislation. Thus one of the grounds on which Chief Justice Taney, in
his opinion in the Dred Scott Case, stigmatized the Missouri Compromise
as unconstitutional was that an act of Congress which deprived "a
citizen of his liberty or property merely because he came himself or
brought his property into a particular territory of the United States,
and who had committed no offence against the laws, could hardly be
dignified with the name of due process of law";[80] and sixty-six years
later the Court held the District of Columbia Minimum Wage Act for women
and minors to be void under the due process clause of Amendment V, not
on account of any objection to the methods by which it was to be
enforced but because of the content of the act--its substantive
requirements.[81] And it is because of this extension of the term "due
process of law" beyond the procedural field that the Court has been
asked to pass upon literally hundreds of State enactments since about
1890 on the representation that they invaded the "liberty" or property
rights of certain persons "unreasonably." In short, this development of
the meaning of "due process of law" came in time to furnish one of the
principal bases of judicial review, and indeed it still remains such so
far as State legislation is concerned. _See_ pp. 971-974.
SCOPE OF GUARANTY
This clause is a restraint on Congress as well as on the executive and
judicial powers of the National Government; it cannot be so construed as
to leave Congress free to make any process it chooses "due process of
law."[82] All persons within the territory of the United States are
entitled to its protection, including corporations,[83] aliens,[84] and
presumptively citizens seeking readmission to the United States.[85] It
is effective in the District of Columbia[86] and in territories which
are part of the United States,[87] but it does not apply of its own
force to unincorporated territories.[88] Nor does it reach enemy alien
belligerents tried by military tribunals outside the territorial
jurisdiction of the United States.[89]
Procedural Due Process
GENERAL
The words "due process of law" do not necessarily imply a proceeding in
a court of justice,[90] or a plenary suit and trial by jury in every
case where personal or property rights are involved. "In all cases, that
kind of procedure is due process of law which is suitable and proper to
the nature of the case, and sanctioned by the established customs and
usages of the courts."[91] Proceedings for contempt of court[92] or to
disbar an attorney[93] may be determined by a court without a jury
trial. For persons in the military or naval services of the United
States,[94] trial by military tribunals is due process. This principle
extends to persons who commit offenses while undergoing punishment
inflicted by court martial; as military prisoners they are still subject
to military law.[95]
CRIMINAL PROSECUTIONS
The due process clause supplements the specific procedural guaranties
enumerated in the Sixth Amendment and in preceding clauses of the Fifth
Amendment for the protection of persons accused of crime. The Court has
relied upon this provision in holding that an accused shall plead, or be
ordered to plead, or a plea of not guilty be entered for him before his
trial proceeds;[96] and in ruling that if the accused is in custody he
must be personally present at every stage of the trial where his
substantial rights may be affected by the proceedings against him.[97]
It is not within the power of the accused or his attorney to waive such
right. Inasmuch as proceedings for criminal contempt do not constitute a
criminal prosecution, it is immaterial if proceedings are held in the
absence of the defendant; the requirement of due process of law is
satisfied by suitable notice and opportunity to be heard.[98]
NOTICE AND HEARING
Due process of law signifies a right to be heard. A decree _pro
confesso_ entered against a defendant after striking his answer from the
files for contempt of court is void.[99] A man may, however, consent to
be bound by a judgment in a case in which he has no right to
participate.[100] Accordingly, due process of law was held not to be
denied to a surety on an undertaking for the release of attached
property when the undertaking required the parties to submit to the
jurisdiction of the court and to agree to abide by the judgment in
relation to the property attached.[101] Where, in a suit for specific
performance of a contract, evidence admitted without objection at the
trial established all the facts necessary for application of the
formula specified by the contract, the appellate court which rejected
the trial court's interpretation of the contract did not infringe the
right to a hearing by entering judgment without remanding the case for a
new trial.[102] After a State court, in proceedings designed _inter
alia_ to invalidate certain releases, rendered judgment without a
special finding on the exact point, a federal court did not deny due
process in a subsequent proceeding by treating such judgment as
conclusive on the validity of the releases.[103] Since proceedings in
bankruptcy are in the nature of proceedings _in rem_, personal notice to
creditors is not required; creditors are bound by the proceedings in
distribution on notice by publication and mail.[104] Where a statute
providing for a public improvement levied an assessment against abutting
property it was held to be "conclusive alike of the question of the
necessity of the work and of the benefits as against abutting
property."[105] Notice to the property owner is not necessary to sustain
the assessment. On the other hand, when the legislature submits these
questions to a commission or other officers the inquiry becomes judicial
and the property owner is entitled to notice or an opportunity to be
heard. Notice by publication is sufficient.[106]
EVIDENCE AND PRESUMPTION IN JUDICIAL PROCEEDINGS
Error in the admission of evidence or the entry of an erroneous judgment
after a full hearing does not constitute a denial of due process.[107] A
statute authorizing cancellation of naturalization certificates for
fraud and providing that the taking up of permanent residence abroad
within five years after naturalization shall be _prima facie_ evidence
of lack of intention to become a permanent resident of the United States
at the time of applying for citizenship was found not to be so
unreasonable as to deny due process of law.[108] Likewise, it was held
reasonable for Congress to enact that a defendant who was discovered to
be in possession of opium should be required to assume the burden of
proving that he had not obtained it through illegal importation.[109]
But a presumption that a firearm or ammunition in the possession of a
person convicted of a crime of violence was transported or received in
violation of law was held invalid because there was no rational
connections between the facts proved and that presumed.[110]
ADMINISTRATIVE PROCEEDINGS
With respect to action 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 the final order becomes effective.[111] In Bowles
_v._ Willingham,[112] it sustained orders fixing maximum rents issued
without a hearing at any stage, saying "* * * where Congress has
provided for judicial review after the regulations or orders have been
made effective it has all that due process under the war emergency
requires."[113] But where, after consideration of charges brought
against an employer by a complaining union, the National Labor Relations
Board undertook to void an agreement between an employer and another
independent union, the latter was entitled to notice and an opportunity
to participate in the proceedings.[114] Although a taxpayer must be
afforded a fair opportunity for hearing in connection with the
collection of taxes,[115] collection by distraint of personal property
is lawful if the taxpayer is allowed a hearing thereafter.[116]
"A FAIR HEARING"
When the Constitution requires a hearing it requires a fair one, held
before a tribunal which at least meets currently prevailing standards of
impartiality.[117] An opportunity must be given not only to present
evidence, but also to know the claims of the opposing party and to meet
them. Those who are brought into contest with the Government in a
quasi-judicial proceeding aimed at control of their activities are
entitled to be fairly advised of what the Government proposes and to be
heard upon the proposal before the final command is issued.[118] But a
variance between the charges and findings will not invalidate
administrative proceedings where the record shows that at no time during
the hearing was there any misunderstanding as to the basis of the
complaint.[119] The mere admission of evidence which would be
inadmissible in judicial proceedings does not vitiate the order of an
administrative agency.[120] A provision that such a body shall not be
controlled by rules of evidence does not, however, justify orders
without a foundation in evidence having rational probative force. Mere
uncorroborated hearsay does not constitute the substantial evidence
requisite to support the findings of the agency.[121] While the Court
has recognized that in some circumstances a "fair hearing" implies a
right to oral argument,[122] it refuses to lay down a general rule that
would cover all cases.[123] It says: "Certainly the Constitution does
not require oral argument in all cases where only insubstantial or
frivolous questions of law, or indeed even substantial ones, are raised.
Equally certainly it has left wide discretion to Congress in creating
the procedures to be followed in both administrative and judicial
proceedings, as well as in their conjunction."[124]
JUDICIAL REVIEW
To the extent that constitutional rights are involved, due process of
law imports a judicial review of the action of administrative or
executive officers. This proposition is undisputed so far as questions
of law are concerned, but the extent to which the courts should and will
go in reviewing determinations of fact has been a highly controversial
issue. In St. Joseph Stock Yards Co. _v._ United States,[125] the
Supreme Court held that upon review of an order of the Secretary of
Agriculture establishing maximum rates for services rendered by a stock
yard company, due process required that the Court exercise its
independent judgment upon the facts to determine whether the rates were
confiscatory.[126] Subsequent cases sustaining rate orders of the
Federal Power Commission have not dealt explicitly with this point.[127]
The Court has said simply that a person assailing such an order "carries
the heavy burden of making a convincing showing that it is invalid
because it is unjust and unreasonable in its consequences."[128]
There has been a division of opinion in the Supreme Court as to what
extent, if at all, the proceedings before military tribunals should be
reviewed by the courts for the purpose of determining compliance with
the due process clause. In In re Yamashita[129] the majority denied a
petition for certiorari and petitions for writs of _habeas corpus_ to
review the conviction of a Japanese war criminal by a military
commission sitting in the Philippine Islands. It held that since the
military commission, in admitting evidence to which objection was made,
had not violated any act of Congress, a treaty or a military command
defining its authority, its ruling on evidence and on the mode of
conducting the proceedings were not reviewable by the courts. Without
dissent, the Supreme Court in Hiatt _v._ Brown[130] reversed the
judgment of a lower court which had discharged a prisoner serving a
sentence imposed by a court-martial, because of errors whereby the
respondent had been deprived of due process of law. The Supreme Court
held that the Court below had erred in extending its review, for the
purpose of determining compliance with the due process clause, to such
matters as the propositions of law set forth in the staff judge
advocate's report, the sufficiency of the evidence to sustain
respondent's conviction, the adequacy of the pre-trial investigation,
and the competence of the law member and defense counsel. In summary,
Justice Clark wrote: "In this case the court-martial had jurisdiction of
the person accused and the offense charged, and acted within its lawful
powers. The correction of any errors it may have committed is for the
military authorities which are alone authorized to review its
decision."[131] Again in Johnson _v._ Eisentrager[132] the Supreme Court
overruled a lower court decision, which, in reliance upon the dissenting
opinion in the Yamashita Case, had held that the due process clause
required that the legality of the conviction of enemy alien belligerents
by military tribunals should be tested by the writ of _habeas corpus_.
ALIENS
To aliens who have never been naturalized or acquired any domicile or
residence in the United States, the decision of an executive or
administrative officer, acting within powers expressly conferred by
Congress, as to whether or not they shall be permitted to enter the
country, is due process of law.[133] The complete authority of Congress
in the matter of admission of aliens justifies delegation of power to
executive officers to enforce the exclusion of aliens afflicted with
contagious diseases by imposing upon the owner of the vessel bringing
any such alien into the country, a money penalty, collectible before and
as a condition of the grant of clearance.[134] If the person seeking
admission claims American citizenship, the decision of the Secretary of
Labor may be made final, but it must be made after a fair hearing,
however summary, and must find adequate support in the evidence. A
decision based upon a record from which relevant and probative evidence
has been omitted is not a fair hearing.[135] Where the statute made the
decision of an immigration inspector final unless an appeal was taken to
the Secretary of the Treasury, a person who failed to take such an
appeal did not, by an allegation of citizenship, acquire a right to a
judicial hearing on _habeas corpus_.[136]
DEPORTATION
Deportation proceedings are not criminal prosecutions within the meaning
of the Bill of Rights. The authority to deport is drawn from the power
of Congress to regulate the entrance of aliens and impose conditions
upon the performance of which their continued liberty to reside within
the United States may be made to depend. Findings of fact reached by
executive officers after a fair, though summary deportation hearing may
be made conclusive.[137] In Wong Yang Sung _v._ McGrath,[138] however,
the Court intimated that a hearing before a tribunal which did not meet
the standards of impartiality embodied in the Administrative Procedure
Act[139] might not satisfy the requirements of due process of law. To
avoid such constitutional doubts, the Court construed the law to
disqualify immigration inspectors as presiding officers in deportation
proceedings. Except in time of war, deportation without a fair hearing
or on charges unsupported by any evidence is a denial of due process
which may be corrected on _habeas corpus_.[140] In contrast with the
decision in United States _v._ Ju Toy[141] that a person seeking
entrance to the United States was not entitled to a judicial hearing on
his claim of citizenship, a person arrested and held for deportation is
entitled to a day in court if he denies that he is an alien.[142] A
closely divided Court has ruled that in time of war the deportation of
an enemy alien may be ordered summarily by executive action; due
process of law does not require the courts to determine the sufficiency
of any hearing which is gratuitously afforded to the alien.[143]
Substantive Due Process
DISCRIMINATION
Almost all legislation involves some degree of classification whereby
its operation is directed to particular categories of persons, things,
or events; and it is partly in recognition of this fact that Amendment
Fourteen forbids the States to deny to persons within their jurisdiction
"equal protection of the laws." But this restriction does not rule out
classifications that are "reasonable"; and the due process of law clause
of Amendment Five is at least as tolerant of legislative
classifications, which would have to be arbitrarily and unreasonably
discriminatory to incur its condemnation.[144] In fact, it does not
appear that the Court has up to this time ever held an act of Congress
unconstitutional on this ground. Thus it has sustained a law imposing
greater punishment for an offense involving rights and property of the
United States than for a like offense involving the rights of property
of a private person.[145] Likewise, a requirement that improved property
in the District of Columbia be connected with the city sewage system,
with different sanctions for residents and nonresidents was upheld over
the argument that the classification was arbitrary.[146] The allowance
to injured seamen of a choice between several measures of redress
without any corresponding right in their employer was held not to deny
due process of law.[147] Differences of treatment accorded marketing
cooperatives in milk marketing orders issued by the Secretary of
Agriculture[148] and the selection of a limited number of tobacco
markets for compulsory grading of tobacco[149] have also been sustained.
The priority of a federal tax lien against property passing at death,
may, without offending the due process clause, be different from that
which attaches to property transferred _inter vivos_ in contemplation of
death.[150]
There are indications, however, that the Court may be prepared to go
further than it has in the past in condemning discrimination as a denial
of due process of law. Relying upon public policy and its supervisory
authority over federal courts, it has reached results similar to those
arrived at under the equal protection clause of the Fourteenth
Amendment, in refusing to enforce restrictive covenants in the District
of Columbia,[151] and in reversing a judgment of a Federal District
Court because of the exclusion of day laborers from the jury panel;[152]
and in Steele _v._ Louisville & N.R. Co.[153] the Railway Labor Act was
construed to require a collective bargaining representative to act for
the benefit of all members of the craft without discrimination on
account of race. Chief Justice Stone indicated that any other
construction would raise grave constitutional doubts,[154] while in a
concurring opinion, Justice Murphy asserted unequivocally that the act
would be inconsistent with the Fifth Amendment if the bargaining agent,
acting under color of federal authority, were permitted to discriminate
against any of the persons he was authorized to represent.[155]
DEPRIVATION OF LIBERTY
In consequence of the explicit assurances of individual liberty
contained in other articles of the Bill of Rights, the clause in the
Fifth Amendment forbidding the deprivation of "liberty" without due
process of law has been invoked chiefly in resistance to measures
alleged to abridge liberty of contract. The two leading cases which held
legislation unconstitutional on this ground have, however, both been
overturned in recent years. Adair _v._ United States,[156] which
invalidated an act of Congress prohibiting any interstate carrier from
threatening an employee with loss of employment if he joined a labor
union, was overruled in substance by Phelps Dodge Corp. _v._ National
Labor Relations Board.[157] Adkins _v._ Children's Hospital,[158] in
which a minimum wage law for the District of Columbia was found to be an
unwarranted abridgment of the liberty of contract, was expressly
repudiated by West Coast Hotel Co. _v._ Parrish.[159] Numerous other
statutes--antitrust laws,[160] acts limiting hours of labor,[161]
prohibiting advance of wages to seamen,[162] making carriers liable for
injuries suffered by employees irrespective of previous contractual
arrangements,[163] requiring employers to bargain collectively with
employees[164] and fixing prices of commodities[165] have been sustained
against attack on this ground.
Interpreting statutes which made the guaranty of due process of law
applicable to Hawaii and the Philippine Islands, the Court enjoined
enforcement of an act of the Territory of Hawaii which prohibited
maintenance of foreign-language schools except upon written permit and
payment of a fee based upon attendance,[166] and held unconstitutional a
Philippine statute which prohibited Chinese merchants from keeping any
accounts in Chinese.[167]
DEPRIVATION OF PROPERTY
Retroactive Legislation Sustained
Federal regulation of future action, based upon rights previously
acquired by the person regulated, is not prohibited by the Constitution.
So long as the Constitution authorizes the subsequently enacted
legislation, the fact that its provisions limit or interfere with
previously acquired rights does not condemn it. Accordingly, rent
regulations were sustained as applied to prevent execution of a judgment
of eviction rendered by a State court before the enabling legislation
was passed.[168] An order by an Area Rent Director reducing an
unapproved rental and requiring the landlord to refund the excess
previously collected, was held, with one dissenting vote, not to be the
type of retroactivity which is condemned by law.[169] The retroactive
effect of a new principle announced by a decision of an administrative
tribunal has been likened to the effect of judicial decisions in cases
of first impression. In Securities Comm'n. _v._ Chenery Corp.,[170] the
Supreme Court sustained a decision of the Commission which refused to
approve a plan of reorganization for a public utility holding company so
long as the preferred stock purchased by the management was treated on a
parity with other preferred stock even though the purchase of such
stock, when made, did not conflict with any law or rule of the
Commission. In the exercise of its comprehensive powers over revenue,
finance and currency, Congress may make Treasury notes legal tender in
payment of debts previously contracted[171] and may invalidate
provisions in private contracts calling for payment in gold coin.[172]
An award of additional compensation under the Longshoremen's and Harbor
Workers' Compensation Act,[173] made pursuant to a private act of
Congress passed after expiration of the period for review of the
original award, directing the Commission to review the case and issue a
new order, was held valid against the employer and insurer.[174] The
application of a statute providing for tobacco marketing quotas, to a
crop planted prior to its enactment, was held not to deprive the
producers of property without due process of law since it operated, not
upon production, but upon the marketing of the product after the act was
passed.[175]
The validation by statute of a prior mortgage of personal property
invalid because improperly recorded, did not deny due process of law to
a judgment creditor seeking to levy an attachment on the mortgaged
property.[176] Nor was property taken without due process of law by a
statute of New Mexico territory, permitting disseisin of real property
to ripen into title after ten years.[177] An order of the military
governor of Porto Rico reducing the period during which the possession
of real estate must continue, to permit an _ex parte_ conversion of an
entry of possessory title into record ownership was construed to apply
only where there still remained a reasonable opportunity for the true
owners to contest the claim. The Court said that any other construction
would permit a taking of property without due process of law.[178]
Rights created by statute are subject to qualification by Congress;
benefits conferred gratuitously may be redistributed or withdrawn at any
time.[179] Where Congress provided, in granting lands to a railroad,
that such land could be resold only to actual settlers, at a price not
exceeding $2.50 per acre, it could constitutionally, for breach of
performance, resume title to the lands while assuring the railroad the
equivalent of its interest.[180] An act making an appropriation for a
private claim which restricted the attorney's fees payable therefrom to
twenty per cent was valid although inconsistent with a prior contract
with the claimant allowing a larger fee.[181] Statutory restrictions on
compensation for services in connection with veterans' pensions or
insurance have been upheld.[182] An increase in the penalty for
production of wheat in excess of quota was not invalid as applied
retroactively to wheat already planted, where Congress concurrently
authorized a substantial increase in the amount of the loan which might
be made to cooperating farmers upon stored "farm marketing excess
wheat."[183]
Retroactive Legislation Disallowed
The due process clause has been successfully invoked to defeat
retroactive invasion or destruction of property rights in a few cases. A
revocation by the Secretary of the Interior of previous approval of
plats and papers showing that a railroad was entitled to land under a
grant was held void as an attempt to deprive the company of its property
without due process of law.[184] The exception of the period of federal
control from the time limit set by law upon claims against carriers for
damages caused by misrouting of goods, was read as prospective only
because the limitation was an integral part of the liability, not merely
a matter of remedy, and would violate the Fifth Amendment if
retroactive.[185] Rights against the United States arising out of
contract are protected by the Fifth Amendment; hence a statute
abrogating contracts of war risk insurance was held unconstitutional as
applied to outstanding policies.[186]
Bankruptcy Legislation
The bankruptcy power of Congress is subject to the Fifth Amendment. A
statute which authorized a court to stay proceedings for the foreclosure
of a mortgage for five years, the debtor to remain in possession at a
reasonable rental, with the option of purchasing the property at its
appraised value at the end of the stay, was held unconstitutional
because it deprived the creditor of substantial property rights acquired
prior to the passage of the act.[187] A modified law, under which the
stay was subject to termination by the Court, and which continued the
right of the creditor to have the property sold to pay the debt was
sustained.[188] Without violation of the due process clause, the sale of
collateral under the terms of a contract may be enjoined, if such sale
would hinder the preparation or consummation of a proposed railroad
reorganization, provided the injunction does no more than delay the
enforcement of the contract.[189] A provision that claims resulting from
rejection of an unexpired lease should be treated as on a parity with
provable debts, but limited to an amount equal to three years rent, was
held not to amount to a taking of property without due process of law,
since it provided a new and more certain remedy for a limited amount, in
lieu of an existing remedy inefficient and uncertain in result.[190] A
right of redemption allowed by State law upon foreclosure of a mortgage
was unavailing to defeat a plan for reorganization of a debt or
corporation where the trial court found that the claims of junior
lienholders had no value.[191]
Right To Sue the Government
A right to sue the Government on a contract is a privilege, not a
property right protected by the Constitution.[192] The right to sue for
recovery of taxes paid may be conditioned upon an appeal to the
Commissioner and his refusal to refund.[193] There was no denial of due
process when Congress took away the right to sue for recovery of taxes,
where the claim for recovery was without substantial equity, having
arisen from the mistake of administrative officials in allowing the
statute of limitations to run before collecting the tax.[194] The denial
to taxpayers of the right to sue for refund of processing and floor
taxes collected under a law subsequently held unconstitutional, and the
substitution of a new administrative procedure for the recovery of such
sums, was held valid.[195] Congress may cut off the right to recover
taxes illegally collected by ratifying the imposition and collection
thereof, where it could lawfully have authorized such exactions prior to
their collection.[196]
CONGRESSIONAL POLICE MEASURES
Numerous regulations of a police nature, imposed under powers
specifically granted to the Federal Government, have been sustained over
objections based on the due process clause. Congress may require the
owner of a vessel on which alien seamen suffering from specified
diseases are brought into the country to bear the expense of caring for
such persons.[197] It may prohibit the transportation in interstate
commerce of filled milk,[198] or the importation of convict made goods
into any State where their receipt, possession or sale is a violation of
local law.[199] It may require employers to bargain collectively with
representatives of their employees chosen in a manner prescribed by
statute, to reinstate employees discharged in violation of law,[200] and
to permit use of a company owned hall for union meetings.[201] It may
enforce continuance of the relationship of employer and employee in the
event of a strike as a consequence of, or in connection with, a current
labor dispute.[202] The fact that property subject to rent control in
time of war suffers a decrease in value does not make such restriction
offensive to the due process clause.[203]
The Postal Service
In its complete control over the postal service Congress may exclude
lottery advertisements or any other matter objectionable on grounds of
public policy.[204] An order requiring return to the senders of all
letters addressed to a concern engaged in a fraudulent enterprise, or to
its officers as such was held reasonable and valid because an order
limited to matter obviously connected with the enterprise would be a
practical nullity.[205] Such an order may be issued by the Postmaster
General "upon evidence satisfactory to him,"[206] but if issued under a
"mistake of law" as to what facts may properly be deemed to constitute
fraud, it will be enjoined by the courts.[207] A hearing upon revocation
of second-class mailing privileges by an assistant Postmaster General
upon notice, at which relator was heard and evidence received was due
process.[208]
Congressional Regulation of Public Utilities
Inasmuch as Congress, in giving federal agencies jurisdiction over
various public utilities, usually has prescribed standards substantially
identical with those by which the Supreme Court has tested the validity
of State action, the review of their orders seldom has turned on
constitutional issues. In two cases, however, maximum rates for
stockyard companies prescribed by the Secretary of Agriculture were
sustained only after detailed consideration of numerous items excluded
from the rate base or from operating expenses, apparently on the
assumption that error with respect to any such item would render the
rates confiscatory and void.[209] A few years later, in Federal Power
Commission _v._ Hope Natural Gas Co.,[210] the Court adopted an entirely
different approach. It took the position that the validity of the
Commission's order depended upon whether the impact or total effect of
the order is just and reasonable, rather than upon the method of
computing the rate base. Rates which enable a company to operate
successfully, to maintain its financial integrity, to attract capital,
and to compensate its investors for the risks assumed cannot be
condemned as unjust and unreasonable even though they might produce only
a meager return in a rate base computed by the "present fair value"
method.[211]
Orders prescribing the form and contents of accounts kept by public
utility companies,[212] and statutes requiring a private carrier to
furnish information for valuing its property to the Interstate Commerce
Commission[213] have been sustained against the objection that they were
arbitrary and invalid. An order of the Secretary of Commerce directed to
a single common carrier by water requiring it to file a summary of its
books and records pertaining to its rates was held not to violate the
Fifth Amendment.[214]
Congressional Regulation of Railroads
Legislation or administrative orders pertaining to railroads have been
challenged repeatedly under the due process clause but seldom with
success. Orders of the Interstate Commerce Commission establishing
through routes and joint rates have been sustained,[215] as has its
division of joint rates to give a weaker group of carriers a greater
share of such rates where the proportion allotted to the stronger group
was adequate to avoid confiscation.[216] The recapture of one half of
the earnings of railroads in excess of a fair net operating income, such
recaptured earnings to be available as a revolving fund for loans to
weaker roads, was held valid on the ground that any carrier earning an
excess held it as trustee.[217] An order enjoining certain steam
railroads from discriminating against an electric railroad by denying it
reciprocal switching privileges did not violate the Fifth Amendment even
though its practical effect was to admit the electric road to a part of
the business being adequately handled by the steam roads.[218]
Similarly, the fact that a rule concerning the allotment of coal cars
operated to restrict the use of private cars did not amount to a taking
of property.[219] Railroad companies were not denied due process of law
by a statute forbidding them to transport in interstate commerce
commodities which have been manufactured, mined or produced by
them.[220] An order approving a lease of one railroad by another, upon
condition that displaced employees of the lessor should receive partial
compensation for the loss suffered by reason of the lease[221] is
consonant with due process of law. A law prohibiting the issuance of
free passes was held constitutional even as applied to abolish rights
created by a prior agreement whereby the carrier bound itself to issue
such passes annually for life, in settlement of a claim for personal
injuries.[222]
Occasionally, however, regulatory action has been held invalid under the
due process clause. An order issued by the Interstate Commerce
Commission relieving short line railroads from the obligation to pay the
usual fixed sum per day rental for cars used on foreign roads, for a
space of two days was arbitrary and invalid.[223] A retirement act which
made eligible for pensions all persons who had been in the service of
any railroad within one year prior to the adoption of the law, counted
past unconnected service of an employee toward the requirement for a
pension without any contribution therefor, and treated all carriers as a
single employer and pooled their assets, without regard to their
individual obligations, was held unconstitutional.[224]
TAXATION
In laying taxes, the Federal Government is less narrowly restricted by
the Fifth Amendment than are the States by the Fourteenth. It may tax
property belonging to its citizens, even if such property is never
situated within the jurisdiction of the United States,[225] or the
income of a citizen resident abroad, which is derived from property
located at his residence.[226] The difference is explained by the fact
that the protection of the Federal Government follows the citizen
wherever he goes, whereas the benefits of State government accrue only
to persons and property within the State's borders. The Supreme Court
has said that, in the absence of an equal protection clause, "a claim of
unreasonable classification or inequality in the incidence or
application of a tax raises no question under the Fifth Amendment,
* * *"[227] It has sustained, over charges of unfair differentiation
between persons, a graduated income tax;[228] a higher tax on
oleomargarine than on butter;[229] an excise tax on "puts" but not on
"calls";[230] a tax on the income of businesses operated by corporations
but not on similar enterprises carried on by individuals;[231] an income
tax on foreign corporations, based on their income from sources within
the United States, while domestic corporations are taxed on income from
all sources;[232] a tax on foreign-built but not upon domestic
yachts;[233] a tax on employers of eight or more persons, with
exemptions for agricultural labor and domestic service;[234] a gift tax
law embodying a plan of graduations and exemptions under which donors of
the same amount might be liable for different sums;[235] an Alaska
statute imposing license taxes only on nonresident fisherman;[236] an
act which taxed the manufacture of oil and fertilizer from herring at a
higher rate than similar processing of other fish or fish offal;[237] an
excess profits tax which defined "invested capital" with reference to
the original cost of the property rather than to its present value;[238]
and an undistributed profits tax in the computation of which special
credits were allowed to certain taxpayers;[239] an estate tax upon the
estate of a deceased spouse in respect of the moiety of the surviving
spouse where the effect of the dissolution of the community is to
enhance the value of the survivor's moiety.[240]
Retroactive Taxes
A gift tax cannot be imposed on gifts consummated before the taxing
statute was adopted.[241] A conclusive presumption that gifts made
within two years of death were made in contemplation of death was
condemned as arbitrary and capricious even with respect to subsequent
transfers.[242] A tax may be made retroactive for a short period to
include profits made while it was in process of enactment. A special
income tax on profits realized by the sale of silver, retroactive for 35
days, which was approximately the period during which the silver
purchase bill was before Congress, was held valid.[243] An income tax
law, made retroactive to the beginning of the calendar year in which it
was adopted, was found constitutional as applied to the gain from the
sale, shortly before its enactment, of property received as a gift
during the year.[244] Retroactive assessment of penalties for fraud or
negligence,[245] or of an additional tax on the income of a corporation
used to avoid a surtax on its shareholders,[246] does not deprive the
taxpayer of property without due process of law.
An additional excise tax imposed upon property still held for sale,
after one excise tax had been paid by a previous owner, does not violate
the due process clause.[247] A transfer tax measured in part by the
value of property held jointly by a husband and wife, including that
which comes to the joint tenancy as a gift from the decedent spouse, is
valid,[248] as is the inclusion in the gross income of the settler of
income accruing to a revocable trust during any period when he had power
to revoke or modify it.[249]
GOVERNANCE OF THE INDIANS
The power of Congress in virtue of its wardship over Indians extends to
a restriction on alienation of Indian lands even after a particular
Indian has been granted citizenship.[250] But rights of tax exemption
accruing to Indian allotments under an act of Congress, which have
become vested, are protected by this amendment against repeal.[251] One
who was duly enrolled as a member of the Chickasaw Nation acquired
valuable rights which the Secretary of the Interior could not strike
down without notice and hearing.[252] An act authorizing suit against
allottees of Indian property as a class, for the value of services in
securing the allotments, which provided for notice upon the governor of
the tribe and designated the Attorney General to defend the suit, was
consonant with due process.[253] Where the statute which created a
tribal council for the Osage Indians, to be elected by the tribe, at the
same time vested the Secretary of the Interior with discretion to remove
a member without notice or hearing, there was no denial of due process
of law since the right to elect was united in its creation with the
right of removal.[254] A statute of the Choctaw Nation providing for the
forfeiture and sale of buildings erected on their lands, was held to be
unenforceable without giving the builder an opportunity to be
heard.[255]
The National Eminent Domain Power
SCOPE OF POWER
Being an incident of sovereignty, the right of eminent domain requires
no constitutional recognition. The requirement of just compensation is
merely a limitation upon the exercise of a preexisting power[256] to
which all private property is subject.[257] This prerogative of the
National Government can neither be enlarged nor diminished by a
State.[258] Whenever lands in a State are needed for a public purpose,
Congress may authorize that they be taken, either by proceedings in the
courts of the State, with its consent, or by proceedings in the courts
of the United States, with or without any consent or concurrent act of
the State.[259] The facts that land included in a federal reservoir
project is owned by a State, or that its taking may impair the tax
revenue of the State, that the reservoir will obliterate part of the
State's boundary and interfere with the State's own project for water
development and conservation, constitute no barrier to the condemnation
of the land by the United States under its superior power of eminent
domain.[260]
ALIEN PROPERTY
There is no constitutional prohibition against confiscation of enemy
property.[261] Congress may authorize seizure and sequestration through
executive channels of property believed to be enemy owned if adequate
provision is made for return in case of mistake.[262] An alien friend is
entitled to the protection of the Fifth Amendment against a taking of
property for public use without just compensation.[263] The fact that
property of our citizens may be confiscated in that alien's country does
not subject the alien friend's property to confiscation here.[264]
PUBLIC USE
The extent to which private property shall be taken for public use rests
wholly in the legislative discretion.[265] Whether the courts have power
to review a determination of the lawmakers that a particular use is a
public use was left in doubt by the decision in United States ex rel.
T.V.A. _v._ Welch.[266] Speaking for the majority, Justice Black
declared: "We think that it is the function of Congress to decide what
type of taking is for a public use * * *"[267] In a concurring opinion
in which Chief Justice Stone joined, Justice Reed took exception to that
portion of the opinion, insisting that whether or not a taking is for a
public purpose is a judicial question.[268] Justice Frankfurter
interpreted the controlling opinion as recognizing the doctrine that
"whether a taking is for a public purpose is not a question beyond
judicial competence."[269] All agreed that the condemnation of property
which had been isolated by the flooding of a highway, to avoid the
expense of constructing a new highway, was a lawful public purpose.
Previous cases have held that the preservation for memorial purposes of
the line of battle at Gettysburg was a public use for which private
property could be taken by condemnation;[270] that where establishment
of a reservoir involved flooding part of a town, the United States might
take nearby property for a new townsite and the fact that there might be
some surplus lots to be sold did not deprive the transaction of its
character as taking for public use.[271]
RIGHTS FOR WHICH COMPENSATION MUST BE MADE
The franchise of a private corporation is property which cannot be taken
for public use without compensation. Upon condemnation of a lock and dam
belonging to a navigation company, the Government was required to pay
for the franchise to take tolls as well as for the tangible
property.[272] Letters patent for a new invention or discovery in the
arts confer upon the patentee an exclusive property for which
compensation must be made when the Government uses the patent.[273] The
frustration of a private contract by the requisitioning of the entire
output of a steel manufacturer is not a taking for which compensation is
required.[274] Where, however, the Government requisitioned from a power
company all of the electric power which could be produced by use of the
water diverted through its intake canal, thereby cutting off the supply
of a lessee which had a right, amounting to a corporeal hereditament
under State law, to draw a portion of that water, the latter was awarded
compensation for the rights taken.[275] An order requiring the removal
or alteration of a bridge over a navigable river, to abate the
obstruction to navigation, is not a taking of property within the
meaning of the Constitution.[276] The exclusion, from the amount to be
paid to the owners of condemned property, of the value of improvements
made by the Government under a lease, was held constitutional.[277] An
undertaking to reduce the menace from flood damages which was inevitable
but for the Government's work does not constitute the Government a taker
of all lands not fully protected; the Government does not owe
compensation under the Fifth Amendment to every landowner whom it fails
to or cannot protect.[278]
When Property is Taken
According to the Legal Tender Cases,[279] the requirement of just
compensation for property taken for public use refers only to direct
appropriation and not to consequential injuries resulting from the
exercise of lawful power. This formula leaves open the question as to
whether injuries are "consequential" merely. Recent doctrine embodies a
more definite test. In United States _v._ Dickinson,[280] the Supreme
Court held that property is "taken" within the meaning of the
Constitution "when inroads are made upon the owner's use of it to an
extent that, as between private parties, a servitude has been acquired
either by an agreement or in course of time."[281] Where the noise and
glaring lights of planes landing at or leaving an airport leased to the
United States, flying below the navigable air space as defined by
Congress, interfere with the normal use of a neighboring farm as a
chicken farm, there is such a taking as to give the owner a
constitutional right to compensation.[282] That the Government had
imposed a servitude on land adjoining its fort so as to constitute a
taking within the law of eminent domain may be found from the facts that
it had repeatedly fired the guns of the fort across the land and had
established a fire control service there.[283] A corporation chartered
by Congress to construct a tunnel and operate railway trains therein was
held liable for damages in the suit by an individual whose property was
so injured by smoke and gas forced from the tunnel as to amount to a
taking of private property.[284]
Navigable Waters
Riparian ownership is subject to the power of Congress to regulate
commerce. When damage results consequentially from an improvement of a
navigable river, it is not a taking of property, but merely the exercise
of a servitude to which the property is always subject.[285] What
constitutes a navigable river within the purview of the commerce clause
often involves sharply disputed issues of fact and of law. In the
leading case of The Daniel Ball[286] the Court laid down the rule that:
"Those rivers must be regarded as public navigable rivers in law which
are navigable in fact. And they are navigable in fact when they are
used, or are susceptible of being used, as highways for commerce, over
which trade and travel are or may be conducted in the customary modes of
trade and travel on water."[287] In 1940, over the dissent of two
Justices, the Court held that the phrase "natural and ordinary
condition" refers to volume of water, the gradients and the regularity
of the flow. It further held that in determining the navigable character
of a river it is proper to consider "the feasibility of interstate use
after reasonable improvements which might be made."[288] A few months
later it decided unanimously that Congress may exercise the power of
eminent domain in connection with the construction of a dam and
reservoir on the nonnavigable stretches of a river in order to preserve
or promote commerce on the navigable portions.[289]
The Government does not have to compensate a riparian owner for cutting
off his access to navigable waters by changing the course of the stream
in order to improve navigation.[290] Where submerged land under
navigable waters of a bay are planted with oysters, the action of the
Government in dredging a channel across the bay in such a way as to
destroy the oyster bed is not a "taking" of property in the
constitutional sense.[291] The determination by Congress that the whole
flow of a stream should be devoted to navigation does not take any
private property rights of a water power company which holds a revocable
permit to erect dams and dykes for the purpose of controlling the
current and using the power for commercial purposes.[292] The interest
of a riparian owner in keeping the level of a navigable stream low
enough to maintain a power head for his use was not one for which he was
entitled to be compensated when the Government raised the level by
erecting a dam to improve navigation.[293] Inasmuch as a riparian owner
has no private property in the flow of the stream, a license to maintain
a hydroelectric dam, may, without offending the Fifth Amendment, contain
a provision giving the United States an option to acquire the property
at a value assumed to be less than its fair value at the time of
taking.[294]
Where the Government erects dams and other obstructions across a river,
causing an overflow of water which renders the property affected unfit
for agricultural use and deprives it of all value, there is taking of
property for which the Government is under an implied contract to make
just compensation.[295] The construction of locks and for "canalizing" a
river, which cause recurrent overflows, impairing but not destroying the
value of the land amounts to a partial taking of property within the
meaning of the Fifth Amendment;--the fee remains in the owner, subject
to an easement in the United States to overflow it as often as may
necessarily result from the operation of the lock and dam for purposes
of navigation.[296] Compensation has been awarded for the erosion of
land by waters impounded by a Government dam,[297] and for the
destruction of the agricultural value of land located on a nonnavigable
tributary of the Mississippi River, which as a result of the continuous
maintenance of the river's level at high water mark, was permanently
invaded by the percolation of the waters, and its drainage
obstructed.[298] When the construction of locks and dams raised the
water in a nonnavigable creek to about one foot below the crest of an
upper milldam, thus preventing the drop in the current necessary to run
the mill, there was a taking of property in the constitutional
sense.[299] A contrary conclusion was reached with respect to the
destruction of property of the owner of a lake through the raising of
the lake level as a consequence of an irrigation project, where the
result to the lake owner's property could not have been foreseen.[300]
JUST COMPENSATION
If only a portion of a single tract is taken, the owner's compensation
includes any element of value arising out of the relation of the part
taken to the entire tract.[301] Thus, where the taking of a strip of
land across a farm closed a private right of way, an allowance was
properly made for value of the easement.[302] On the other hand, if the
taking has in fact benefited the owner, the benefit may be set off
against the value of the land condemned.[303] But there may not be taken
into account any supposed benefit which the owner may receive in common
with all from the public use to which the property is appropriated.[304]
Where Congress condemned certain lands for park purposes, setting off
resulting benefits against the value of property taken, and by
subsequent act directed the erection of a fire-station house therein, it
was held that property was not thereby taken without just
compensation.[305] The Constitution does not require payment of
consequential damages to other property of the owner consisting of
separate tracts adjoining that affected by the taking.[306]
Just compensation means the full and perfect equivalent, in money, of
the property taken.[307] The owner's loss, not the taker's gain is the
measure of such compensation.[308] Where the property has a determinable
market value, that is the normal measure of recovery.[309] Market value
is "what a willing buyer would pay in cash to a willing seller."[310] It
may reflect not only the use to which the property is presently devoted
but also that to which it may be readily converted.[311] But the value
of the property to the Government for its particular use is not a
criterion.[312] In two recent cases the Court held that the owners of
cured pork[313] and black pepper[314] which was requisitioned by the
Government during the war could recover only the O.P.A. ceiling price
for those commodities, despite findings of the Court of Claims that the
replacement cost of the meat exceeded its ceiling price, and that the
pepper had a "retention value" in excess of that price. By a
five-to-four decision it ruled that the Government was not obliged to
pay the market value of a tug where such value had been enhanced as a
consequence of the Government's urgent war time needs.[315]
Consequential damages such as destruction of a business,[316] the
expense of moving fixtures and personal property from the premises, or
the loss of goodwill which inheres in the location of the land, are not
recoverable when property is taken in fee.[317] But a different
principle obtains where only a temporary occupancy is assumed. If a
portion of a long term lease is taken, damage to fixtures is allowed in
addition to the value of the occupancy, and the expenses of moving,
storage charges, and the cost of preparing the space for occupancy by
the Government are proper elements to be considered in determining the
fair rental value of the premises for the period taken.[318] These
elements are not taken into account in fixing compensation for
condemnation of leaseholds for the remainder of their term.[319] In
Kimball Laundry Co. _v._ United States,[320] the Court by a close
division held that when the United States condemned a laundry plant for
temporary occupancy, evidence should have been received concerning the
diminution in the value of its business due to destruction of its trade
routes, and compensation allowed for any demonstrable loss of
going-concern value. In United States _v._ Pewee Coal Co.,[321]
involving another temporary seizure by the government, a similarly
divided Court sustained the Court of Claims in awarding the company
compensation for losses attributable to increased wage payments by the
government. Four Justices thought no such loss had been shown.
Interest
Ordinarily property is taken under a condemnation suit upon the payment
of the money award by the condemner and no interest accrues.[322] If,
however, the property is taken in fact before payment is made, just
compensation includes an increment which, to avoid use of the term
"interest," the Court has called "an amount sufficient to produce the
full equivalent of that value paid contemporaneously with the
taking."[323] If the owner and the Government enter into a contract
which stipulates the purchase price for lands to be taken, with no
provision for interest, the Fifth Amendment is inapplicable and the
landowner cannot recover interest even though payment of the purchase
price is delayed.[324] Where property of a citizen has been mistakenly
seized by the Government, converted into money and invested, the owner
is entitled, in recovering compensation, to an allowance for the use of
his property.[325]
Enforcement of Right to Compensation
When a taking of private property has been ordered, the question of just
compensation is judicial.[326] The compensation to be paid may be
ascertained by any appropriate tribunal capable of estimating the value
of the property. Whether the tribunal shall be created directly by
Congress or one already established by the State shall be adopted for
the occasion, is a matter of legislative discretion.[327] The estimate
of just compensation is not required to be made by a jury, but may be
entrusted to commissioners appointed by a court or by the executive, or
to an inquest consisting of more or fewer men than an ordinary
jury.[328] The federal courts may take jurisdiction of an action in
ejectment by a citizen against officers of the Government, to recover
property of which he has been deprived by force and which has been
converted to the use of the Government without lawful authority and
without just compensation.[329] Where property is taken by the United
States in the exercise of the power of eminent domain, but without
condemnation proceedings, the owner may, under the Tucker Act, bring
suit for just compensation in the Court of Claims or in a district court
sitting as a Court of Claims.[330]
The Fifth Amendment does not require that compensation shall actually be
paid in advance of the taking[331] but the owner is entitled to
reasonable, certain, and adequate provision for obtaining compensation
before his occupancy is disturbed.[332] In time of war or immediate
public danger private property may be impressed into public service
without the consent of the owner, but such taking raises an implied
promise on the part of the United States to reimburse the owner.[333] An
objection that an act of Congress providing for condemnation of land for
a public purpose limited the aggregate amount to be expended was
rejected, since the limitation did not affect the right of property
holders in the event of condemnation.[334]
Notes
[1] Ex parte Wilson, 114 U.S. 417 (1885).
[2] Ibid. 427.
[3] Mackin _v._ United States, 117 U.S. 348, 352 (1886).
[4] United States _v._ Moreland, 258 U.S. 433 (1922).
[5] Ex parte Wilson, 114 U.S. 417, 426 (1885).
[6] Wong Wing _v._ United States, 163 U.S. 228, 237 (1896).
[7] Ex parte Wilson, 114 U.S. 417 (1885).
[8] Mackin _v._ United States, 117 U.S. 348 (1886).
[9] Parkinson _v._ United States, 121 U.S. 281 (1887).
[10] United States _v._ DeWalt, 128 U.S. 393 (1888).
[11] Ex parte Wilson, 114 U.S. 417, 426 (1885).
[12] Duke _v._ United States, 301 U.S. 492 (1937).
[13] Ex parte Bain, 121 U.S. 1, 12 (1887).
[14] Breese _v._ United States, 226 U.S. 1 (1912).
[15] Johnson _v._ Sayre, 158 U.S. 109, 114 (1895).
[16] Ex parte Quirin, 317 U.S. 1, 43, 44 (1942).
[17] Ex parte Lange, 18 Wall. 103, 169 (1874).
[18] Ibid. 172, 173.
[19] Kepner _v._ United States, 195 U.S. 100 (1904). This case arose
under the act of Congress of July 1, 1902 (32 Stat. 631) for the
temporary civil government of the Philippine Islands. To the same effect
are United States _v._ Sanges, 144 U.S. 310, 323 (1892), and United
States _v._ Evans, 213 U.S. 297 (1909), both cases arising within the
United States.
[20] United States _v._ Oppenheimer, 242 U.S. 85 (1916).
[21] United States _v._ Ball, 161 U.S. 622, 669 (1896).
[22] Ex parte Lange, 18 Wall. 163 (1874).
[23] Bozza _v._ United States, 330 U.S. 160 (1947).
[24] Wade _v._ Hunter, 336 U.S. 684, 689 (1949).
[25] United States _v._ Perez, 9 Wheat. 579 (1824); Logan _v._ United
States, 144 U.S. 263, 298 (1892).
[26] Simmons _v._ United States, 142 U.S. 148 (1891); Thompson _v._
United States, 155 U.S. 271 (1894).
[27] Lovato _v._ New Mexico, 242 U.S. 199 (1916).
[28] Wade _v._ Hunter, 336 U.S. 684 (1949).
[29] Collins _v._ Loisel, 262 U.S. 426 (1923).
[30] Taylor _v._ United States, 207 U.S. 120, 127 (1907).
[31] Bassing _v._ Cady, 208 U.S. 386, 391-392 (1908).
[32] United States _v._ Wilson, 7 Pet. 150, 160 (1883).
[33] Burton _v._ United States, 202 U.S. 344 (1906); United States _v._
Randenbush, 8 Pet. 288, 289 (1834).
[34] Morgan _v._ Devine, 237 U.S. 632 (1915). _See also_ Carter _v._
McClaughry, 183 U.S. 365 (1902); Albrecht _v._ United States, 273 U.S. 1
(1927).
[35] Ex parte Nielsen, 131 U.S. 176, 188 (1889).
[36] Helvering _v._ Mitchell, 303 U.S. 391 (1938).
[37] Pinkerton _v._ United States, 328 U.S. 640 (1946); United States
_v._ Bayer, 331 U.S. 532 (1947).
[38] Pinkerton _v._ United States, 328 U.S. 640 (1946).
[39] American Tobacco Co. _v._ United States, 328 U.S. 781 (1946).
[40] 339 U.S. 485 (1950).
[41] Coffey _v._ United States, 116 U.S. 436 (1886).
[42] United States _v._ La Franca, 282 U.S. 568 (1931).
[43] Helvering _v._ Mitchell, 303 U.S. 391 (1938).
[44] Waterloo Distilling Corp. _v._ United States, 282 U.S. 577 (1931).
[45] United States _v._ Furlong, 5 Wheat. 184, 197 (1820).
[46] United States _v._ Lanza, 260 U.S. 377 (1922); Jerome _v._ United
States, 318 U.S. 101 (1943).
[47] In re Chapman, 166 U.S. 661, 672 (1897).
[48] See generally J.H. Wigmore, 4 Evidence in Trials at Common Law, Sec.
2250 (2nd ed., 1923); also Edward S. Corwin, The Supreme Court's
Construction of the Self-Incrimination Clause, 29 Michigan Law Review,
1-27, 195-207 (1930).
[49] McCarthy _v._ Arndstein, 266 U.S. 34, 40 (1924). _See also_ Boyd
_v._ United States, 116 U.S. 616 (1886); Counselman _v._ Hitchcock, 142
U.S. 547 (1892); Brown _v._ Walker, 161 U.S. 591 (1896).
[50] Rogers _v._ United States, 340 U.S. 367, 370 (1951); United States
_v._ Monia, 317 U.S. 424, 427 (1943).
[51] Hoffman _v._ United States, 341 U.S. 479, 486 (1951); Mason _v._
United States, 244 U.S. 362, 363 (1917).
[52] Rogers _v._ United States, 340 U.S. 367, 371 (1951); United States
_v._ Murdock, 284 U.S. 141, 148 (1931).
[53] Brown _v._ Walker, 161 U.S. 591, 598-599 (1896).
[54] _Cf._ Burdick _v._ United States, 236 U.S. 79 (1915); and Biddle
_v._ Perovich, 274 U.S. 480 (1927).
[55] United States _v._ Murdock, 284 U.S. 141, 149 (1931).
[56] Feldman _v._ United States, 322 U.S. 487 (1944).
[57] Brown _v._ Walker, 161 U.S. 591 (1896); Johnson _v._ United States,
318 U.S. 189 (1943).
[58] _Cf._ Twining _v._ New Jersey, 211 U.S. 78 (1908). However, a
defendant in a prosecution by the United States enjoys a statutory right
to have the jury instructed that his failure to testify creates no
presumption against him. 28 U.S.C. 632; Bruno _v._ U.S., 308 U.S. 287
(1939). _See also_ 318 U.S. at 196.
[59] Pierce _v._ United States, 160 U.S. 355 (1896); Wilson _v._ United
States, 162 U.S. 613 (1896); United States _v._ Mitchell, 322 U.S. 65
(1944).
[60] 318 U.S. 332 (1943).
[61] _Ibid._, 340. In Upshaw _v._ United States, 335 U.S. 410 (1948), a
sharply divided Court found the McNabb case inapplicable to a case in
which respondent, while under arrest for assault with intent to rape,
was brought, by extended questioning, to confess having previously
committed murder in an attempt to rape.
[62] Sullivan _v._ United States, 274 U.S. 259, 263 264 (1927).
[63] Blau _v._ United States, 340 U.S. 159 (1950). _See also_ Blau _v._
United States, 340 U.S. 332 (1951); Rogers _v._ United States, 340 U.S.
367 (1951); Dennis _v._ United States, 341 U.S. 494 (1951).
[64] Holt _v._ United States, 218 U.S. 245 (1910).
[65] Rochin _v._ California, 342 U.S. 165 (1952).
[66] Re Harris, 221 U.S. 274, 279 (1911).
[67] Dier _v._ Banton, 262 U.S. 147 (1923).
[68] Re Fuller, 262 U.S. 91 (1923).
[69] Arndstein _v._ McCarthy, 254 U.S. 71 (1920).
[70] McCarthy _v._ Arndstein, 262 U.S. 355 (1923).
[71] McCarthy _v._ Arndstein, 266 U.S. 34 (1924).
[72] Hale _v._ Henkel, 201 U.S. 43 (1906); Wilson _v._ United States,
221 U.S. 361 (1911); Oklahoma Press Pub. Co. _v._ Walling, 327 U.S. 186
(1946).
[73] United States _v._ White, 322 U.S. 694 (1944).
[74] Rogers _v._ United States, 340 U.S. 367, 372 (1951).
[75] _See_ pp. 825-828 _ante_.
[76] 335 U.S. 1 (1948).
[77] Ibid. 33. In a dissenting opinion Justice Frankfurter argued: "The
underlying assumption of the Court's opinion is that all records which
Congress in the exercise of its constitutional powers may require
individuals to keep in the conduct of their affairs, because those
affairs also have aspects of public interest, become 'public' records in
the sense that they fall outside the constitutional protection of the
Fifth Amendment. The validity of such a doctrine lies in the scope of
its implications. The claim touches records that may be required to be
kept by federal regulatory laws, revenue measures, labor and census
legislation in the conduct of business which the understanding and
feeling of our people still treat as private enterprise, even though its
relations to the public may call for governmental regulation, including
the duty to keep designated records.... If Congress by the easy device
of requiring a man to keep the private papers that he has customarily
kept can render such papers 'public' and nonprivileged, there is little
left to either the right of privacy or the constitutional privilege."
Ibid. 70.
[78] The Institutes, Part 2, 50-51 (1669).
[79] On the above _see_ especially Justice Harlan's dissenting opinion
in Hurtado _v._ California, 110 U.S. 516, 538 (1884); _also_ Den ex dem.
Murray _v._ Hoboken Land & Improvement Co., 18 How. 272, 280 (1856);
Twining _v._ New Jersey, 211 U.S. 78 (1908); _also_ Corwin, Liberty
Against Government (Louisiana State University Press), chap. III.
[80] Scott _v._ Sandford, 10 How. 393, 450 (1857).
[81] Adkins _v._ Children's Hospital, 261 U.S. 525 (1923). _See also_
Adair _v._ United States, 208 U.S. 161 (1908); and Lochner _v._ New
York, 198 U.S. 45 (1905).
[82] Den ex dem. Murray _v._ Hoboken Land & Improvement Co., 18 How.
272, 276 (1856).
[83] Union P.R. Co. _v._ United States (Sinking Fund Cases), 99 U.S.
700, 719 (1879).
[84] Wong Wing _v._ United States, 163 U.S. 228, 238 (1896).
[85] United States _v._ Ju Toy, 198 U.S. 253, 263 (1905); _cf._ Quon
Quon Poy _v._ Johnson, 273 U.S. 352 (1927).
[86] Wight _v._ Davidson, 181 U.S. 371, 384 (1901).
[87] Lovato _v._ New Mexico, 242 U.S. 199, 201 (1916).
[88] Public Utility Comrs. _v._ Ynchausti & Co., 251 U.S. 401, 406
(1920).
[89] Johnson _v._ Eisentrager, 339 U.S. 763 (1950); _cf._ In re
Yamashita, 327 U.S. 1 (1946). Both decisions were reached by a divided
Court. In the Yamashita Case, Justices Rutledge and Murphy dissented on
the ground that the due process clause applies to every human being,
including enemy belligerents.
[90] Davidson _v._ New Orleans, 96 U.S. 97, 102 (1878). Public Clearing
House _v._ Coyne, 194 U.S. 497, 508 (1904).
[91] Ex parte Wall, 107 U.S. 265, 289 (1883).
[92] Interstate Commerce Commission _v._ Brimson, 154 U.S. 447, 489
(1894); Cooke _v._ United States, 267 U.S. 517, 537 (1925).
[93] Ex parte Wall, 107 U.S. 265 (1883).
[94] Reaves _v._ Ainsworth, 219 U.S. 296, 304 (1911). _See also_ Ex
parte Reed, 100 U.S. 13 (1879); Johnson _v._ Sayre, 158 U.S. 109 (1895);
Mullan _v._ United States, 212 U.S. 516 (1909); United States ex rel.
Creary _v._ Weeks, 259 U.S. 336 (1922).
[95] Kahn _v._ Anderson, 255 U.S. 1 (1921).
[96] Crain _v._ United States, 162 U.S. 625, 645 (1896).
[97] Hopt _v._ Utah, 110 U.S. 574, 579 (1884).
[98] Blackmer _v._ United States, 284 U.S. 421, 440 (1932).
[99] Hovey _v._ Elliott, 167 U.S. 409, 417 (1897).
[100] Beall _v._ New Mexico ex rel. Griffin, 16 Wall. 535 (1873).