[14] New Hampshire _v._ Louisiana, 108 U.S. 76 (1883). However, this
rule does not preclude a suit by a State to collect debts which have
been assigned to it and the proceeds of which will remain with it. South
Dakota _v._ North Carolina, 192 U.S. 286 (1904)
[15] 134 U.S. 1, 11 (1890).
[16] 292 U.S. 313, 328-332 (1934).
[17] For the liability of the States to suit by the United States _see_
the discussion of the right of the United States to sue under article
III, Sec. 2, _supra_, pp. 584-585.
[18] Tindal _v._ Wesley, 167 U.S. 204, 213 (1897). This case applied the
rule of United States _v._ Lee, 106 U.S. 196 (1882), to suits against
States.
[19] _See_ for example Larson _v._ Domestic & Foreign Corp., 337 U.S.
682 (1949), where both the majority and dissenting opinions utilize both
types of cases in a suit against a federal official.
[20] Pennoyer _v._ McConnaughy, 140 U.S. 1 (1891); Scully _v._ Bird, 209
U.S. 481 (1908); Atchison, Topeka & S.F.R. Co. _v._ O'Connor, 223 U.S.
280 (1912); Greene _v._ Louisville & I.R. Co., 244 U.S. 499 (1917);
Louisville & Nashville R. Co. _v._ Greene, 244 U.S. 522 (1917).
[21] Osborn _v._ Bank of the United States, 9 Wheat. 728 (1824); Board
of Liquidation _v._ McComb, 92 U.S. 531 (1876); Poindexter _v._
Greenhow, 114 U.S. 270 (1885); Pennoyer _v._ McConnaughy, 140 U.S. 1
(1891); Reagan _v._ Farmers' Loan & Trust Co., 154 U.S. 362 (1894);
Smyth _v._ Ames, 169 U.S. 466 (1898); Ex parte Young, 209 U.S. 123
(1908); Truax _v._ Raich, 239 U.S. 33 (1915); Public Service Co. _v._
Corboy, 250 U.S. 153 (1919); Sterling _v._ Constantin, 287 U.S. 378
(1932); Davis _v._ Gray, 16 Wall. 203 (1873); Tomlinson _v._ Branch, 15
Wall. 460 (1873); Litchfield _v._ Webster Co., 101 U.S. 773 (1880);
Allen _v._ Baltimore & O.R. Co., 114 U.S. 311 (1885); Gunter _v._
Atlantic C.L.R. Co., 200 U.S. 273 (1906); Prout _v._ Starr, 188 U.S. 537
(1903); Scott _v._ Donald, 165 U.S. 58; _also_ 165 U.S. 107 (1897).
[22] South Carolina _v._ Wesley, 155 U.S. 542 (1895); Tindal _v._
Wesley, 167 U.S. 204 (1897); Hopkins _v._ Clemson Agricultural College,
221 U.S. 636 (1911). In this last case the Court held that a suit would
lie against the State Agricultural College, and relief could be granted
to the extent that it would not affect the property rights of the State.
These cases involve such matters as the seizure and distraint of
property, wrongs done by government corporations, etc.
[23] _See_ for example Governor of Georgia _v._ Madrazo, 1 Pet. 110
(1828); Cunningham _v._ Macon and Brunswick R. Co., 109 U.S. 446 (1883);
Louisiana ex rel. Elliott _v._ Jumel, 107 U.S. 711 (1883); Hagood _v._
Southern, 117 U.S. 52 (1886); Chandler _v._ Dix, 194 U.S. 590 (1904);
Murray _v._ Wilson Distilling Co., 213 U.S. 151 (1909); Hopkins _v._
Clemson Agricultural College, 221 U.S. 636 (1911); Lankford _v._ Platte
Iron Works, 235 U.S. 461 (1915); Carolina Glass Co. _v._ South Carolina,
240 U.S. 305 (1916); Kennecott Copper Corp. _v._ State Tax Commission,
327 U.S. 573 (1946).
[24] Hagood _v._ Southern, 117 U.S. 52, 70 (1886). _See also_ Pennoyer
_v._ McConnaughy, 140 U.S. 1, 10 (1891) where Justice Lamar also
emphasizes the operation of the judgment against the State itself.
[25] 107 U.S. 711, 721 (1883). _See also_ Christian _v._ Atlantic &
N.C.R. Co., 133 U.S. 233 (1890).
[26] Louisiana ex rel. Elliott _v._ Jumel, 107 U.S. 711, 721 (1883).
[27] Board of Liquidation _v._ McComb, 92 U.S. 531, 541 (1876). This was
a case involving an injunction, but Justice Bradley regarded mandamus
and injunction as correlative to each other in cases where the official
unlawfully commits or omits an act. _See also_ Rolston _v._ Missouri
Fund Commissioners, 120 U.S. 390, 411 (1887), where it is held that an
injunction would lie to restrain the sale of a railroad on the ground
that a suit to compel a State official to do what the law requires of
him is not a suit against the State. _See also_ Houston _v._ Ormes, 252
U.S. 469 (1920).
[28] Board of Liquidation _v._ McComb, 92 U.S. 531, 541 (1876).
[29] 154 U.S. 362 (1894).
[30] Poindexter _v._ Greenhow, 114 U.S. 270 (1885); Allen _v._ Baltimore
& O.R. Co., 114 U.S. 311 (1885); Pennoyer _v._ McConnaughy, 140 U.S. 1
(1891); In re Tyler, 149 U.S. 164 (1893). As stated by Justice Harlan in
Fitts _v._ McGhee, 172 U.S. 516, 529-530 (1899), "There is a wide
difference between a suit against individuals, holding official
positions under a State, to prevent them, under the sanction of an
unconstitutional statute, from committing by some positive act a wrong
or trespass, and a suit against officers of a State merely to test the
constitutionality of a state statute, in the enforcement of which those
officers will act only by formal judicial proceedings in the courts of
the State." _See also_ North Carolina _v._ Temple, 134 U.S. 22 (1890).
[31] _See_ 123 U.S. 443; and 172 U.S. 516.
[32] 154 U.S. 362 (1894).
[33] 169 U.S. 466 (1898).
[34] 209 U.S. 123 (1908).
[35] 123 U.S. 443 (1887); 172 U.S. 516 (1899).
[36] For cases following Ex parte Young, _see_ Home Telephone &
Telegraph Co. _v._ Los Angeles, 227 U.S. 278 (1913); Truax _v._ Raich,
239 U.S. 33 (1915); Cavanaugh _v._ Looney, 248 U.S. 453 (1919); Terrace
_v._ Thompson, 263 U.S. 197 (1923); Hygrade Provision Co. _v._ Sherman,
266 U.S. 497 (1925); Massachusetts State Grange _v._ Benton, 272 U.S.
525 (1926); Hawks _v._ Hamill, 288 U.S. 52 (1933). These last cases,
however, emphasize "manifest oppression" as a prerequisite to issuance
of such injunctions. _See also_ Fenner _v._ Boykin, 271 U.S. 240 (1926),
where an injunction to restrain the enforcement of a State law
penalizing gambling contracts was denied. The rule of Ex parte Young
applies equally to the governor of a State in the enforcement of an
unconstitutional statute. Continental Baking Co. _v._ Woodring, 286 U.S.
352 (1932); Sterling _v._ Constantin, 287 U.S. 378 (1932). Joseph D.
Block, "Suit Against Government Officers and the Sovereign Immunity
Doctrine," 59 Harv. L. Rev. 1060, 1078 (1946), points out that Ex parte
Young is enunciating the doctrine that an official proceeding
unconstitutionally is "stripped of his official ... character" has given
impetus to the fiction that the suit must be against the officer as an
individual to be permissible under the Eleventh Amendment. Two recent
cases in which Ex parte Young was followed are Alabama Comm'n _v._
Southern R. Co., 341 U.S. 341, 344 (1951); and Georgia R. _v._ Redwine,
342 U.S. 299, 304-305 (1952).
[37] 123 U.S. 443 (1887). _See also_ Larson _v._ Domestic and Foreign
Corp., 337 U.S. 682, 687-688 (1949).
[38] 49 Stat. 1096 (1936).
[39] Worcester County Trust Co. _v._ Riley, 302 U.S. 292 (1937); _see
also_ Old Colony Trust Co. _v._ Seattle, 271 U.S. 426 (1926).
[40] Treinies _v._ Sunshine Mining Co., 308 U.S. 66 (1939). _See also_
Missouri _v._ Fiske, 290 U.S. 18 (1933).
[41] 106 U.S. 196 (1882).
[42] 167 U.S. 204 (1897).
[43] Johnson _v._ Lankford, 245 U.S. 541 (1918); Martin _v._ Lankford,
245 U.S. 547 (1918).
[44] Smith _v._ Reeves, 178 U.S. 436 (1900).
[45] Atchison, Topeka & S.F.R. Co. _v._ O'Connor, 223 U.S. 280 (1912).
[46] 322 U.S. 47 (1944).
[47] Ford Motor Co. _v._ Dept. of Treasury of Indiana, 323 U.S. 459
(1945); Kennecott Copper Corp. _v._ State Tax Commission, 327 U.S. 573
(1946).
[48] Lincoln County _v._ Luning, 133 U.S. 529 (1890); Hopkins _v._
Clemson Agricultural College, 221 U.S. 636 (1911).
[49] Great Northern Ins. Co. _v._ Read, 322 U.S. 47, 54 (1944); Ford
Motor Co. _v._ Dept. of Treasury of Indiana, 323 U.S. 459 (1945);
Kennecott Copper Corp. _v._ State Tax Commission, 327 U.S. 573 (1946).
[50] Smith _v._ Reeves, 178 U.S. 436 (1900). _See also_ Murray _v._
Wilson Distilling Co., 213 U.S. 151 (1909); Chandler _v._ Dix, 194 U.S.
590 (1904).
[51] Clark _v._ Barnard, 108 U.S. 436, 447 (1883); Ashton _v._ Cameron
County Water Improvement Dist., 298 U.S. 513, 531 (1936).
[52] Farish _v._ State Banking Board, 235 U.S. 498 (1915); Missouri _v._
Fiske, 290 U.S. 18 (1933).
[53] Murray _v._ Wilson Distilling Co., 213 U.S. 151, 172 (1909), citing
Smith _v._ Reeves, 178 U.S. 436 (1900); Chandler _v._ Dix, 194 U.S. 590
(1904). _See also_ Graves _v._ Texas Co., 298 U.S. 393, 403-404 (1936).
AMENDMENT 12
ELECTION OF PRESIDENT
Page
Purpose and operation of the amendment 942
Electors as free agents 942
ELECTION OF PRESIDENT
Amendment 12
The Electors shall meet in their respective states, and vote by ballot
for President and Vice-President, one of whom, at least, shall not be an
inhabitant of the same state with themselves; they shall name in their
ballots the person voted for as President, and in distinct ballots the
person voted for as Vice-President, and they shall make distinct lists
of all persons voted for as President, and of all persons voted for as
Vice-President, and of the number of votes for each, which lists they
shall sign and certify, and transmit sealed to the seat of the
government of the United States, directed to the President of the
Senate;--The President of the Senate shall, in the presence of the
Senate and House of Representatives, open all the certificates and the
votes shall then be counted;--The person having the greatest number of
votes for President, shall be the President, if such number be a
majority of the whole number of Electors appointed; and if no person
have such majority, then from the persons having the highest numbers not
exceeding three on the list of those voted for as President, the House
of Representatives shall choose immediately, by ballot, the President.
But in choosing the President, the votes shall be taken by states, the
representation from each state having one vote; a quorum for this
purpose shall consist of a member or members from two-thirds of the
states, and a majority of all the states shall be necessary to a choice.
And if the House of Representatives shall not choose a President
whenever the right of choice shall devolve upon them, before the fourth
day of March[1] next following, then the Vice-President shall act as
President, as in the case of the death or other constitutional
disability of the President.[2]--The person having the greatest number
of votes as Vice-President, shall be the Vice-President, if such number
be a majority of the whole number of Electors appointed, and if no
person have a majority, then from the two highest numbers on the list,
the Senate shall choose the Vice-President; a quorum for the purpose
shall consist of two-thirds of the whole number of Senators, and a
majority of the whole number shall be necessary to a choice. But no
person constitutionally ineligible to the office of President shall be
eligible to that of Vice-President of the United States.
Purpose and Operation of the Amendment
This amendment, which supersedes clause 3 of section 1 of article II, of
the original Constitution, was inserted on account of the tie between
Jefferson and Burr in the election of 1800. The difference between the
procedure which it defines and that which was laid down in the original
Constitution is in the provision it makes for a separate designation by
the Electors of their choices for President and Vice President,
respectively. The final sentence of clause 1, above, has been in turn
superseded today by Amendment XX. In consequence of the disputed
election of 1876, Congress, by an act passed in 1887, has laid down the
rule that if the vote of a State is not certified by the governor under
the seal thereof, it shall not be counted unless both Houses of Congress
are favorable.[3] It should be noted that no provision is made by this
Amendment for the situation which would result from a failure to choose
either a President or Vice President, an inadequacy which Amendment XX
undertakes to cure.
Electors as Free Agents
Acting under the authority of state law, the Democratic Committee of
Alabama adopted a rule requiring that a party candidate for the office
of Presidential Elector take a pledge to support the nominees of the
party's National Convention for President and Vice President and that
the party's officers refuse to certify as a candidate for such office
any person who, otherwise qualified, refused to take such a pledge. One
Blair did so refuse and was upheld, in mandamus proceedings, by the
State Supreme Court, which ordered the Chairman of the State Democratic
Executive Committee to certify him to the Secretary of State as a
candidate for the office of Presidential Elector in the Democratic
Primary to be held on May 6, 1952. The Supreme Court at Washington
granted certiorari and reversed this holding.[4] The constitutional
issue arose out of the Alabama Court's findings that the required pledge
was incompatible with the Twelfth Amendment, which contemplated that
Electors, once appointed, should be absolutely free to vote for any
person who was constitutionally eligible to the office of President or
Vice President.[5] This position the Supreme Court combatted as follows:
"It is true that the Amendment says the electors shall vote by ballot.
But it is also true that the Amendment does not prohibit an elector's
announcing his choice beforehand, pledging himself. The suggestion that
in the early elections candidates for electors--contemporaries of the
Founders--would have hesitated, because of constitutional limitations,
to pledge themselves to support party nominees in the event of their
selection as electors is impossible to accept. History teaches that the
electors were expected to support the party nominees. Experts in the
history of government recognize the longstanding practice. Indeed, more
than twenty states do not print the names of the candidates for electors
on the general election ballot. Instead, in one form or another, they
allow a vote for the presidential candidate of the national conventions
to be counted as a vote for his party's nominees for the electoral
college. This long-continued practical interpretation of the
constitutional propriety of an implied or oral pledge of his ballot by a
candidate for elector as to his vote in the electoral college weighs
heavily in considering the constitutionality of a pledge, such as the
one here required, in the primary. However, even if such promises of
candidates for the electoral college are legally unenforceable because
violative of an assumed constitutional freedom of the elector under the
Constitution, Art. II, Sec. 1, to vote as he may choose in the electoral
college, it would not follow that the requirement of a pledge in the
primary is unconstitutional. A candidacy in the primary is a voluntary
act of the applicant. He is not barred, discriminatorily, from
participating but must comply with the rules of the party. Surely one
may voluntarily assume obligations to vote for a certain candidate. The
state offers him opportunity to become a candidate for elector on his
own terms, although he must file his declaration before the primary.
Ala. Code, Tit. 17, Sec. 145. Even though the victory of an independent
candidate for elector in Alabama cannot be anticipated, the state does
offer the opportunity for the development of other strong political
organizations where the need is felt for them by a sizable block of
voters. Such parties may leave their electors to their own choice. We
conclude that the Twelfth Amendment does not bar a political party from
requiring the pledge to support the nominees of the National
Convention. Where a state authorizes a party to choose its nominees for
elector in a party primary and to fix the qualifications for the
candidates, we see no federal constitutional objection to the
requirement of this pledge."[6] Justice Jackson conceding that "as an
institution the Electoral College suffered atrophy almost
indistinguishable from _rigor mortis_," nevertheless dissented on the
following ground: "It may be admitted that this law does no more than to
make a legal obligation of what has been a voluntary general practice.
If custom were sufficient authority for amendment of the Constitution by
Court decree, the decision in this matter would be warranted. Usage may
sometimes impart changed content to constitutional generalities, such as
'due process of law,' 'equal protection,' or 'commerce among the
states.' But I do not think powers or discretions granted to federal
officials by the Federal Constitution can be forfeited by the Court for
disuse. A political practice which has its origin in custom must rely
upon custom for its sanctions."[7]
Notes
[1] By the Twentieth Amendment, adopted in 1933, the term of the
President is to begin on the 20th of January.
[2] Under the Twentieth Amendment, Sec. 3, in case a President is not
chosen before the time for beginning of his term, the Vice
President-elect shall act as President, until a President shall have
qualified.
[3] 3 U.S.C.A. Sec. 17.
[4] Ray _v._ Blair, 343 U.S. 214 (1952).
[5] Ibid. 218-219.
[6] Ibid. 228-231.
[7] Ibid. 232-233.
AMENDMENT 13
SLAVERY AND INVOLUNTARY SERVITUDE
Page
Origin and purpose of the amendment 949
Peonage 950
Discriminations and legal compulsions less than servitude 951
Enforcement 953
SLAVERY AND INVOLUNTARY SERVITUDE
Amendment 13
Section 1. Neither slavery nor involuntary servitude, except as
a punishment for crime whereof the party shall have been duly convicted,
shall exist within the United States, or any place subject to their
jurisdiction.
Section 2. Congress shall have power to enforce this article by
appropriate legislation.
Origin and Purpose of the Amendment
"The language of the Thirteenth Amendment," which "reproduced the
historic words of the ordinance of 1787 for the government of the
Northwest Territory, and gave them unrestricted application within the
United States,"[1] was first construed in the Slaughter-House Cases.[2]
Presented there with the contention that a Louisiana statute, by
conferring upon a single corporation the exclusive privilege of
slaughtering cattle in New Orleans, had imposed an unconstitutional
servitude on the property of other butchers disadvantaged thereby, the
Court expressed its inability, even after "a microscopic search," to
find in said amendment any "reference to servitudes, which may have been
attached to property in certain localities * * *." On the contrary, the
term "servitude" appearing therein was declared to mean "a personal
servitude * * * [as proven] by the use of the word 'involuntary,' which
can only apply to human beings. * * * The word servitude is of larger
meaning than slavery, * * *, and the obvious purpose was to forbid all
shades and conditions of African slavery." But while the Court was
initially in doubt as to whether persons other than negroes could share
in the protection afforded by this amendment, it nevertheless conceded
that although "* * * negro slavery alone was in the mind of the Congress
which proposed the thirteenth article, [the latter] forbids any other
kind of slavery, now or hereafter. If Mexican peonage or the Chinese
coolie labor system shall develop slavery of the Mexican or Chinese race
within our territory, this amendment may safely be trusted to make it
void."[3] All uncertainty on this score was dispelled in later
decisions; and in Hodges _v._ United States[4] the Justices proclaimed
unequivocally that the Thirteenth Amendment is "not a declaration in
favor of a particular people. It reaches every race and every
individual, and if in any respect it commits one race to the nation, it
commits every race and every individual thereof. Slavery or involuntary
servitude of the Chinese, of the Italian, of the Anglo-Saxon are as much
within its compass as slavery or involuntary servitude of the
African."[5]
Peonage
Notwithstanding its early acknowledgment in the Slaughter-House Cases
that peonage was comprehended within the slavery and involuntary
servitude proscribed by the Thirteenth Amendment,[6] the Court has had
frequent occasion to determine whether State legislation or the conduct
of individuals has contributed to reestablishment of that prohibited
status. Defined as a condition of enforced servitude by which the
servitor is compelled to labor in liquidation of some debt or
obligation, either real or pretended, against his will, peonage was
found to have been unconstitutionally sanctioned by an Alabama statute,
directed at defaulting sharecroppers, which imposed a criminal liability
and subjected to imprisonment farm workers or tenants who abandoned
their employment, breached their contracts, and exercised their legal
right to enter into employment of a similar nature with another person.
The clear purpose of such a statute was declared to be the coercion of
payment, by means of criminal proceedings, of a purely civil liability
arising from breach of contract.[7] Several years later, in Bailey _v._
Alabama,[8] the Court voided another Alabama statute which made the
refusal without just cause to perform the labor called for in a written
contract of employment, or to refund the money or pay for the property
advanced thereunder, _prima facie_ evidence of an intent to defraud and
punishable as a criminal offense; and which was enforced subject to a
local rule of evidence which prevented the accused, for the purpose of
rebutting the statutory presumption, from testifying as to his
"uncommunicated motives, purpose, or intention." Inasmuch as a State
"may not compel one man to labor for another in payment of a debt by
punishing him as a criminal if he does not perform the service or pay
the debt," the Court refused to permit it "to accomplish the same result
[indirectly] by creating a statutory presumption which, upon proof of no
other fact, exposes him to conviction."[9] In 1914, in United States
_v._ Reynolds,[10] a third Alabama enactment was condemned as conducive
to peonage through the permission it accorded to persons, fined upon
conviction for a misdemeanor, to confess judgment with a surety in the
amount of the fine and costs, and then to agree with said surety, in
consideration of the latter's payment of the confessed judgment, to
reimburse him by working for him upon terms approved by the court,
which, the Court pointed out, might prove more onerous than if the
convict had been sentenced to imprisonment at hard labor in the first
place. Fulfillment of such a contract with the surety was viewed as
being virtually coerced by the constant fear it induced of rearrest, a
new prosecution, and a new fine for breach of contract, which new
penalty the convicted person might undertake to liquidate in a similar
manner attended by similar consequences. More recently, Bailey _v._
Alabama has been followed in Taylor _v._ Georgia[11] and Pollock _v._
Williams,[12] in which statutes of Georgia and Florida not materially
different from that voided in the Bailey Case, were found to be
unconstitutional. Although the Georgia statute prohibited the defendant
from testifying under oath, it did not prevent him from entering an
unsworn denial both of the contract and of the receipt of any cash
advancement thereunder, a factor which, the Court emphasized, was no
more controlling than the customary rule of evidence in the Bailey Case.
In the Florida Case, notwithstanding the fact that the defendant pleaded
guilty and accordingly obviated the necessity of applying the _prima
facie_ presumption provision, the Court reached an identical result,
chiefly on the ground that the presumption provision, despite its
nonapplication, "had a coercive effect in producing the plea of guilty."
Discriminations and Legal Compulsions Less Than Servitude
A contention of "involuntary servitude" was rejected in the following
cases:
(1) Racial discrimination. Denial of admission to public places, such as
inns, restaurants, or theaters, or the segregation of races in public
conveyances, etc., was held not to give rise to a "condition of enforced
compulsory service of one to another," and effected no deprivation of
one's legal right to dispose of his person, property, and services. Even
prior to the amendment, such discriminations had never been "regarded
as badges of slavery"; and it was not "the intent of the amendment to
denounce every act which was wrong if done to a free man and yet
justified in a condition of slavery."[13] Likewise, individuals who
conspired to prevent citizens of African descent, because of their race
or color, from making or carrying out contracts of labor, and so from
pursuing a common calling, were not deemed to have reduced negroes to a
condition of involuntary servitude; and hence a federal statute which
penalized such a conspiracy was declared to be in excess of the
enforcement powers vested in Congress by the Thirteenth Amendment.[14]
(2) "Services which have from time immemorial been treated as
exceptional." Thus, contracts of seamen, which have from earliest
historical times been treated as exceptional, and involving, to a
certain extent, the surrender of personal liberty may be enforced
without regard to the amendment.[15]
(3) "Enforcement of those duties which individuals owe the State, such
as services in the army, militia, on the jury, etc." Thus, "a State has
inherent power to require every able-bodied man within its jurisdiction
to labor for a reasonable time on public roads near his residence
without direct compensation."[16] Similarly, the exaction by Congress of
enforced military duty from citizens of the United States, as was done
by the Selective Service Act of May 18, 1917 (40 Stat. 76); and the
requirement, under the Selective Training and Service Act of 1940 (50
U.S.C.A. App. Sec. 305 (g)), that conscientious objectors be assigned to
work of national importance under civilian direction, were held not to
contravene the Thirteenth Amendment.[17]
(4) A State law which made it a misdemeanor for a lessor, or his agent
or janitor, intentionally to fail to furnish such water, heat, light,
elevator, telephone, or other service as may be required by the terms of
the lease and necessary to the proper and customary use of the building,
did not create an involuntary servitude.[18]
(5) Section 506 (a) of the Communications Act (47 U.S.C.A. Sec. 506) making
it unlawful to coerce, compel, or constrain a licensee to employ persons
in excess of the number of the employees needed by the licensee in the
conduct of a radio broadcasting business, on its face, was construed as
not violating this amendment.[19]
Enforcement
"* * * this amendment, besides abolishing forever slavery and
involuntary servitude * * *, gives power to Congress to protect all
persons within the jurisdiction of the United States from being in any
way subject to slavery or involuntary servitude, except as a punishment
for crime, and in the enjoyment of that freedom which it was the object
of the amendment to secure. * * *"[20] It "is undoubtedly
self-executing without any ancillary legislation, * * * [but]
legislation may be necessary and proper to meet all the various * * *
circumstances to be affected by it, and to prescribe proper modes of
redress for its violation in letter or spirit." This legislation,
moreover, "may be direct and primary, operating upon the acts of
individuals, whether sanctioned by State legislation or not; [whereas]
under the Fourteenth [Amendment], * * * it * * * can only be, corrective
in its character, addressed to counteract and afford relief against
State regulations or proceedings."[21]
Pursuant to its powers of enforcement under section two of this
amendment, Congress on March 2, 1867 enacted a statute[22] by the terms
of which the system of peonage was abolished and prohibited and
penalties were imposed on anyone who holds, arrests, or returns, or
causes, or aids in the arrest or return of a person to peonage. The
validity of this act was sustained in Clyatt _v._ United States;[23] and
more recently, in United States _v._ Gaskin,[24] a proviso thereof was
construed as capable of supporting a conviction for arrest with intent
to compel performance of labor even though the debtor in fact rendered
no service after his arrest. Each of the acts enumerated in that
proviso, the "holding, arresting, or the returning, may be the subject
of indictment and punishment."
Notes
[1] Bailey _v._ Alabama, 219 U.S. 219, 240 (1911).
[2] 16 Wall. 36 (1873).
[3] Ibid. 69, 71-72.
[4] 203 U.S. 1 (1906).
[5] Ibid. 16-17.
[6] Pursuant to its enforcement powers under section 2 of this
amendment, Congress, on March 2, 1867 adopted a statute (14 Stat. 546),
which is now found in 8 U.S.C.A. Sec. 56 and 18 U.S.C.A. Sec. 1581, by
the terms of which peonage was prohibited, and persons returning any one
to a condition of peonage were subjected to criminal punishment. This
statute was upheld in Clyatt _v._ United States, 197 U.S. 207 (1905).
[7] Peonage Cases, 123 F. 671 (1903).
[8] 219 U.S. 219 (1911). Justice Holmes, who was joined by Justice
Lurton, dissented on the ground that a State was not forbidden by this
amendment from punishing a breach of contract as a crime. "Compulsory
work for no private master in a jail is not peonage."--Ibid. 247.
[9] Ibid. 244.
[10] 235 U.S. 133 (1914).
[11] 315 U.S. 25 (1942).
[12] 322 U.S. 4 (1944). Justice Reed, with Chief Justice Stone
concurring, contended in a dissenting opinion that a State is not
prohibited by the Thirteenth Amendment from "punishing the fraudulent
procurement of an advance in wages."--Ibid. 27.
[13] Civil Rights Cases, 109 U.S. 3, 23-25 (1883); Plessy _v._ Ferguson,
163 U.S. 537 (1896).
[14] Hodges _v._ United States; 203 U.S. 1 (1906).
[15] Robertson _v._ Baldwin, 165 U.S. 275, 282 (1897).
[16] Butler _v._ Perry, 240 U.S. 328, 333 (1916).--Work-or-fight laws,
such as States enacted during World War I, which required male residents
to be employed during the period of that War were sustained on similar
grounds, as were municipal ordinances, enforced during the Depression,
which compelled indigents physically able to perform manual labor to
serve the municipality without compensation as a condition of receiving
financial assistance.--State _v._ McClure, 7 Boyce (Del.) 265; 105 A.
712 (1919); Commonwealth _v._ Pouliot, 292 Mass. 229; 198 N.E. 256
(1935).
[17] Arver _v._ United States (Selective Draft Law Cases), 245 U.S. 366,
390 (1918); United States _v._ Brooks, 54 F. Supp. 995 (1944); affirmed
147 F. (2d) 134 (1945); certiorari denied, 324 U.S. 878 (1945). It may
be noted in this connection that labor leaders have contended that
conscription of labor in time of war, unaccompanied by nationalization
of industry, would mean that the conscripts, having thus been forced by
the Government to work for private profit, would be reduced to
involuntary servitude. This position is not supported by the
precedents.--_See_ Corwin, Total War and the Constitution, 89-90 (1947).
[18] Brown (Marcus) Holding Co. _v._ Feldman, 256 U.S. 170, 109 (1921).
[19] United States _v._ Petrillo, 332 U.S. 1, 12-13 (1947). Injunctions
and "cease and desist" orders in labor disputes have also been
repeatedly sustained against charges by labor that the prohibitions of
this amendment had been violated. _See_ Auto Workers _v._ Wis. Board,
336 U.S. 245 (1949), in which application of the Wisconsin Employment
Peace Act in support of an order forbidding recurrent, intermittent work
stoppages for unstated ends was held not to have imposed involuntary
servitude. _See also_ Western Union Tel. Co. _v._ International B. of E.
Workers, 2 F. (2d) 993 (1924); International Brotherhood, Etc. _v._
Western U. Tel. Co., 46 F. (2d) 736 (1931), certiorari denied, 284 U.S.
630 (1931).
[20] United States _v._ Harris, 106 U.S. 629, 640 (1883). An act of
Congress which penalized a conspiracy to deprive any person of the equal
protection of the laws or of equal privileges and immunities under the
laws was accordingly held unconstitutional insofar as its validity was
made to depend upon the Thirteenth Amendment.
[21] Civil Rights Cases, 109 U.S. 3, 20, 23 (1883).
[22] 14 Stat. 546; 8 U.S.C.A. Sec. 56; 18 U.S.C.A. Sec. 1581.
[23] 197 U.S. 207, 218 (1905).
[24] 320 U.S. 527, 529 (1944).
AMENDMENT 14
RIGHTS OF CITIZENS
Page
Section 1. Citizenship; privileges and immunities; due process;
equal protection 963
Citizens of the United States 963
Kinds and sources of citizenship 963
History 963
Judicial elucidation of the citizenship clause 964
National and State citizenship 965
Corporations 965
Privileges and immunities 965
Purpose and early history of the clause 965
Privileges and immunities of citizens of the United States 967
Privileges held not within the protection of the clause 969
Due process of law clause 971
Historical development 971
Police power: liberty: property 974
Liberty of contract--labor relations 976
Definitions 981
"Persons" defined 981
Due process and the police power 982
Definition 982
Limitations on the police power 982
"Liberty," in general 983
Definitions 983
Personal liberty: compulsory vaccination: sexual
sterilization 984
Liberties pertaining to education (of teachers, parents,
pupils) 984
Liberties safeguarded by the first eight amendments 985
Liberty of contract (labor relations) 985
In general 985
Laws regulating hours of labor 986
Laws regulating labor in mines 987
Laws prohibiting employment of children in hazardous
occupations 987
Laws regulating payment of wages 987
Minimum wage laws 988
Workmen's compensation laws 989
Collective bargaining 991
Regulation of charges; Business affected with a Public
Interest 994
History 994
Nebbia _v._ New York 996
Judicial review of publicly determined rates and charges 998
Development 998
Limitations on judicial review 1000
Ben Avon Case 1003
History of the valuation question 1004
Regulation of public utilities (other than rates) 1008
In general 1008
Compulsory expenditures 1009
Grade crossings and other expenditures by railroads 1010
Compellable services 1011
Intercompany railway service 1012
Intercompany discriminatory service charges 1013
Safety regulations applicable to railroads 1014
Liabilities and penalties 1014
Regulation of corporations, business, professions, and
trades 1016
Domestic corporations 1016
Foreign corporations 1016
Business in general 1017
Laws prohibiting trusts, discrimination, restraint of
trade 1017
Statutes preventing fraud in sale of goods 1018
Blue sky laws; laws regulating boards of trade, etc. 1019
Trading stamps 1019
Banking 1020
Loans, interest, assignments 1020
Insurance 1021
Professions, trades, occupations 1023
Pharmacies 1023
Miscellaneous business, professions, trades, and
occupations 1023
Protection of resources of the State 1025
Oil and gas 1025
Protection of property damaged by mining or drilling of
wells 1026
Water 1026
Apple and citrus fruit industries 1026
Fish and game 1027
Limitations on ownership 1027
Zoning, building lines, etc. 1027
Safety regulations 1029
Police power 1029
General 1029
Health measures 1030
Protection of water supply 1030
Garbage 1030
Sewers 1030
Food and Drugs, etc. 1030
Milk 1030
Protection of public morals 1031
Gambling and lotteries 1031
Red light districts 1031
Sunday blue laws 1031
Intoxicating liquor 1031
Regulation of motor vehicles and motor carriers 1032
Succession to property 1033
Administration of estates 1034
Abandoned property 1034
Vested rights, remedial rights; political candidacy 1034
Man's best friend 1035
Control of local units of government 1035
Taxation 1036
In general 1036
Public purpose 1036
Other considerations affecting validity: excessive
burden; ration of amount to benefit received 1037
Estate, gift and inheritance taxes 1037
Other types of taxes 1036
Income taxes 1036
Franchise taxes 1036
Severance taxes 1036
Real property taxes (assessment) 1036
Real property taxes (special assessments) 1040
Jurisdiction to tax 1041
Land 1041
Tangible personalty 1041
Intangible personalty 1042
General 1042
Taxes on intangibles sustained 1042
Taxes on intangibles invalidated 1044
Transfer taxes (inheritance, estate, gift taxes) 1045
Corporation taxes 1049
Intangible personal property 1049
Privilege taxes measured by corporate stock 1050
Privilege taxes measured by gross receipts 1051
Taxes on tangible personal property 1052
Income and other taxes 1053
Individual incomes 1053
Incomes of foreign corporations 1054
Chain store taxes 1055
Insurance company taxes 1055
Procedure in taxation 1056
In general 1056
Notice and hearing in relation to general taxes 1057
Notice and hearing in relation to assessments 1057
Notice and hearing in relation to special assessments 1058
Sufficiency and manner of giving notice 1060
Sufficiency of remedy 1060
Laches 1061
Collection of taxes 1061
Eminent Domain 1062
Historical development 1062
Public use 1063
Necessity for a taking 1064
What constitutes a taking for a public use 1064
Just compensation 1066
Uncompensated takings 1067
Consequential damages 1067
Limits to the above rule 1068
Due process in eminent domain 1069
Notice 1069
Hearing 1069
Occupation in advance of condemnation 1070
Due process in civil proceedings 1070
Some general criteria 1070
Ancient usage and uniformity 1070
Equality 1071
Due process and judicial process 1071
Jurisdiction 1072
In general 1072
How perfected: by voluntary appearance or service of
process 1072
Service of process in actions in personam: individuals,
resident and nonresident 1073
Suits in personam 1075
Suability of foreign corporations 1075
Service of process 1080
Actions in rem--proceedings against land 1080
Actions in rem--attachment proceedings 1081
Actions in rem--corporations, estates, trusts, etc. 1081
Actions in rem--divorce proceedings 1083
Misnomer of defendant--false return, etc. 1083
Notice and hearing 1084
Legislative proceedings 1084
Administrative proceedings 1084
Statutory proceedings 1087
Judicial proceedings 1087
Sufficiency of notice and hearing 1088
Power of States to regulate procedure 1089
Generally 1089
Pleading and practice 1089
Commencement of actions 1089
Pleas in abatement 1090
Defenses 1090
Amendments and continuances 1091
Costs, damages, and penalties 1091
Statutes of limitation 1092
Evidence and presumptions 1093
Jury trials: dispensing with trials 1096
Due process in criminal proceedings 1096
General 1096
Indefinite statutes: right of accused to knowledge of
offense 1097
Abolition of the grand jury 1098
Right to counsel 1098
Right to trial by jury 1109
Self-incrimination: forced confessions 1111
Unreasonable searches and seizures 1121
Conviction based on perjured testimony 1124
Confrontation: presence of the accused; public trial 1126
Trial by impartial tribunal 1131
Other attributes of a fair trial 1132
Excessive bail, cruel and unusual punishment, sentence 1133
Double jeopardy 1135
Rights of prisoners 1137
Access to the courts 1137
Appeals: corrective process 1137
Due process: miscellaneous 1139
Appeals 1139
Federal review of State procedure 1140
Equal protection of the laws 1141
Definition of terms 1141
What constitutes State action 1141
"Persons" 1142
"Within its jurisdiction" 1143
"Equal protection of the laws" 1144
Legislative classifications 1145
Taxation 1146
Classifications for the purpose of taxation 1147
Foreign corporations 1149
Income taxes 1150
Inheritance taxes 1150
Motor vehicle taxes 1151
Poll taxes 1152
Property taxes 1152
Special assessment 1152
Police power 1153
Classification 1153
Administrative discretion 1157
Alien laws 1157
Labor relations 1158
Monopolies 1160
Punishment for crime 1160
Segregation 1161
Political rights 1163
Procedure 1165
General doctrine 1165
Access to courts 1166
Corporations 1166
Expenses of litigation 1167
Selection of jury 1167
Section 2. Apportionment of representation 1170
In general 1171
"Indians not taxed" 1171
Right to vote 1172
Reduction of State's representation 1172
Section 3. Disqualification of officers 1173
In general 1173
Section 4. Public debt, etc. 1174
Section 5. Enforcement 1175
Scope of the provision 1175
RIGHTS OF CITIZENS
Amendment 14
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State shall make
or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
Citizens of the United States
KIND AND SOURCES OF CITIZENSHIP
There are three categories of persons who, if subject to the
jurisdiction of the United States, are citizens thereof: (1) those who
are born citizens, of whom there are two classes, those who are born in
the United States and those who are born abroad of American parentage;
(2) those who achieve citizenship by qualifying for it in accordance
with the naturalization statutes; (3) those who have citizenship thrust
upon them, such as the members of certain Indian tribes and the
inhabitants of certain dependencies of the United States. In the present
connection we are interested in those who are citizens by virtue of
birth in the United States.[1]
HISTORY
In the famous Dred Scott Case,[2] Chief Justice Taney had ruled that
United States citizenship was enjoyed by two classes of individuals: (1)
white persons born in the United States as descendants of "persons, who
were at the time of the adoption of the Constitution recognized as
citizens in the several States and [who] became also citizens of this
new political body," the United States of America, and (2) those who,
having been "born outside the dominions of the United States," had
migrated thereto and been naturalized therein. The States were
competent, he conceded, to confer State citizenship upon anyone in their
midst, but could not make the recipient of such status a citizen of the
United States. The Negro, however, according to the Chief Justice, was
ineligible to attain United States citizenship either from a State or by
virtue of birth in the United States, even as a free man descended from
a Negro residing as a free man in one of the States at the date of
ratification of the Constitution. That basic document did not
contemplate the possibility of Negro citizenship.[3] By the Fourteenth
Amendment this deficiency of the original Constitution was cured.[4]
JUDICIAL ELUCIDATION OF THE CITIZENSHIP CLAUSE
By the decision in 1898 in United States _v._ Wong Kim Ark,[5] all
children born in the United States to aliens, even temporary sojourners,
if they are not exempt from territorial jurisdiction, are citizens
irrespective of race or nationality. But children born in the United
States to alien enemies in hostile occupation or to diplomatic
representatives of a foreign state, not being "subject to the
jurisdiction thereof," i.e., of the United States, are not citizens.[6]
Likewise persons born on a public vessel of a foreign country while
within the waters of the United States are not considered as having been
born within the jurisdiction of the United States, and hence are not
citizens thereof.[7] Conversely, a Chinese born on the high seas aboard
an American vessel of Chinese parents residing in the United States was
declared not to be a citizen on the ground of not having been born "in
the United States."[8] But a child who was born in like circumstances of
parents who were citizens of the United States was declared, shortly
before the Civil War, to be a citizen thereof.[9]
NATIONAL AND STATE CITIZENSHIP
With the ratification of the Fourteenth Amendment a distinction between
citizenship of the United States and citizenship of a State was clearly
recognized and established. "Not only may a man be a citizen of the
United States without being a citizen of a State, but an important
element is necessary to convert the former into the latter. He must
reside within the State to make him a citizen of it, but it is only
necessary that he should be born or naturalized in the United States to
be a citizen of the Union. It is quite clear, then, that there is a
citizenship of the United States, and a citizenship of a State, which
are distinct from each other, and which depend upon different
characteristics or circumstances in the individual."[10] National
citizenship, although not created by this amendment, was thereby made
"paramount and dominant."[11]
CORPORATIONS
Citizens of the United States within the meaning of this article must be
natural and not artificial persons; a corporate body is not a citizen of
the United States.[12]
Privileges and Immunities
PURPOSE AND EARLY HISTORY OF THE CLAUSE
Unique among constitutional provisions, the privileges and immunities
clause of the Fourteenth Amendment enjoys the distinction of having been
rendered a "practical nullity" by a single decision of the Supreme Court
rendered within five years after its ratification. In the
Slaughter-House Cases[13] a bare majority of the Court frustrated the
aims of the most aggressive sponsors of this clause, to whom was
attributed an intention to centralize "in the hands of the Federal
Government large powers hitherto exercised by the States" with a view to
enabling business to develop unimpeded by State interference. This
expansive alteration of the Federal System was to have been achieved by
converting the rights of the citizens of each State as of the date of
the adoption of the Fourteenth Amendment into privileges and immunities
of United States citizenship and thereafter perpetuating this newly
defined _status quo_ through judicial condemnation of any State law
challenged as "abridging" any one of the latter privileges. To have
fostered such intentions, the Court declared, would have been "to
transfer the security and protection of all the civil rights * * * to
the Federal Government, * * * to bring within the power of Congress the
entire domain of civil rights heretofore belonging exclusively to the
States," and to "constitute this court a perpetual censor upon all
legislation of the States, on the civil rights of their own citizens,
with authority to nullify such as it did not approve as consistent with
those rights, as they existed at the time of the adoption of this
amendment * * * [The effect of] so great a departure from the structure
and spirit of our institutions; * * * is to fetter and degrade the State
governments by subjecting them to the control of Congress, in the
exercise of powers heretofore universally conceded to them of the most
ordinary and fundamental character; * * * We are convinced that no such
results were intended by the Congress * * *, nor by the legislatures
* * * which ratified" this amendment, and that the sole "pervading
purpose" of this and the other War Amendments was "the freedom of the
slave race."
Conformably to these conclusions the Court advised the New Orleans
butchers that the Louisiana statute conferring on a single corporation a
monopoly of the business of slaughtering cattle abrogated no rights
possessed by them as United States citizens and that insofar as that law
interfered with their claimed privilege of pursuing the lawful calling
of butchering animals, the privilege thus terminated was merely one of
"those which belonged to the citizens of the States as such, and" that
these had been "left to the State governments for security and
protection" and had not been by this clause "placed under the special
care of the Federal Government." The only privileges which the latter
clause expressly protected against State encroachment were declared to
be those "which owe their existence to the Federal Government, its
National character, its Constitution, or its laws."--privileges, indeed,
which had been available to United States citizens even prior to the
adoption of the Fourteenth Amendment; and inasmuch as under the
principle of federal supremacy no State ever was competent to interfere
with their enjoyment, the privileges and immunities clause of the
Fourteenth Amendment was thereby reduced to a superfluous reiteration of
a prohibition already operative against the States.[14]
PRIVILEGES AND IMMUNITIES OF CITIZENS OF THE UNITED STATES
Although the Court has expressed a reluctance to attempt a definitive
enumeration of those privileges and immunities of United States citizens
such as are protected against State encroachment, it nevertheless felt
obliged in the Slaughter-House Cases "to suggest some which owe their
existence to the Federal Government, its National character, its
Constitution, or its laws." Among those then identified were the
following: right of access to the seat of Government, and to the
seaports, subtreasuries, land offices, and courts of justice in the
several States; right to demand protection of the Federal Government on
the high seas, or abroad; right of assembly and privilege of the writ of
_habeas corpus_; right to use the navigable waters of the United States;
and rights secured by treaty.[15]
In a later listing in Twining _v._ New Jersey,[16] decided in 1908, the
Court recognized "among the rights and privileges" of national
citizenship the following: The right to pass freely from State to
State;[17] the right to petition Congress for a redress of
grievances;[18] the right to vote for national officers;[19] the right
to enter public lands;[20] the right to be protected against violence
while in the lawful custody of a United States marshal;[21] and the
right to inform the United States authorities of violations of its
laws.[22] Earlier in a decision not referred to in the aforementioned
enumeration, the Court had also acknowledged that the carrying on of
interstate commerce is "a right which every citizen of the United States
is entitled to exercise."[23]
During the past fifteen years this clause has been accorded somewhat
uneven treatment by the Court which, on two occasions at least, has
manifested a disposition to magnify the restraint which it imposes on
State action by enlarging previous enumerations of the privileges
protected thereby. In Hague _v._ C.I.O.,[24] decided in 1939, the Court
affirmed that freedom to use municipal streets and parks for the
dissemination of information concerning provisions of a federal statute
and to assemble peacefully therein for discussion of the advantages and
opportunities offered by such act was a privilege and immunity of a
United States citizen. The latter privilege was deemed to have been
abridged by city officials who acted in pursuance of a void ordinance
which authorized a director of safety to refuse permits for parades or
assemblies on streets or parks whenever he believed riots could thereby
be avoided and who forcibly evicted from their city union organizers who
sought to use the streets and parks for the aforementioned purposes.[25]
Again in Edwards _v._ California,[26] four Justices[27] who concurred in
the judgment that a California statute restricting the entry of indigent
migrants was unconstitutional preferred to rest their decision on the
ground that the act interfered with the right of citizens to move freely
from State to State. In thus rejecting the commerce clause, relied on by
the majority as the basis for disposing of this case, the minority
thereby resurrected an issue first advanced in the old decision of
Crandall _v._ Nevada[28] and believed to have been resolved in favor of
the commerce clause by Helson and Randolph _v._ Kentucky.[29] Colgate
_v._ Harvey,[30] however, which was decided in 1935 and overruled in
1940,[31] represented the first attempt by the Court since adoption of
the Fourteenth Amendment to convert the privileges and immunities clause
into a source of protection of other than those "interests growing out
of the relationship between the citizen and the national government."
Here the Court declared that the right of a citizen, resident in one
State, to contract in another, to transact any lawful business, or to
make a loan of money, in any State other than that in which the citizen
resides was a privilege of national citizenship which was abridged by a
State income tax law excluding from taxable income interest received on
money loaned within the State.[32] Whether or not this overruled
precedent is again to be revived and the privileges and immunities
clause again placed in readiness for further expansion cannot yet be
determined with assurance; but in Oyama _v._ California,[33] decided in
1948, the Court, in a single sentence, affirmed the contention of a
native-born youth that California's Alien Land Law, applied so as to
work a forfeiture of property purchased in his name with funds advanced
by his parent, a Japanese alien ineligible to citizenship and precluded
from owning land by the terms thereof, deprived him "of his privileges
as an American citizen." In none of the previous enumerations has the
right to acquire and retain property been set forth as one of the
privileges of American citizenship protected against State abridgment;
nor is any connection readily discernible between this right and the
"relationship between the citizen and the national government." However,
the right asserted by Oyama was supported by a "federal statute enacted
before the Fourteenth Amendment" which provided that "all citizens of
the United States shall have the same right, in every State and
Territory, as is enjoyed by white citizens thereof to * * * purchase,
* * * and hold * * * real * * * property."[34]
PRIVILEGES HELD NOT WITHIN THE PROTECTION OF THE CLAUSE
In the following cases State action was upheld against the challenge
that it abridged the immunities or privileges of citizens of the United
States:
(1) Statute limiting hours of labor in mines.[35]
(2) Statute taxing the business of hiring persons to labor outside the
State.[36]
(3) Statute requiring employment of only licensed mine managers and
examiners, and imposing liability on the mine owner for failure to
furnish a reasonably safe place for workmen.[37]
(4) Statute restricting employment under public works of the State to
citizens of the United States, with a preference to citizens of the
State.[38]
(5) Statute making railroads liable to employees for injuries caused by
negligence of fellow servants, and abolishing the defense of
contributory negligence.[39]
(6) Statute prohibiting a stipulation against liability for negligence
in delivery of interstate telegraph messages.[40]
(7) Refusal of State court to license a woman to practice law.[41]
(8) Law taxing in the hands of a resident citizen a debt owing from a
resident of another State and secured by mortgage of land in the
debtors' State.[42]
(9) Statutes regulating the manufacture and sale of intoxicating
liquors.[43]
(10) Statute regulating the method of capital punishment.[44]
(11) Statute restricting the franchise to male citizens.[45]
(12) Statute requiring persons coming into a State to make a declaration
of intention to become citizens and residents thereof before being
permitted to register as voters.[46]
(13) Statute restricting dower, in case wife at time of husband's death
is a nonresident, to lands of which he died seized.[47]
(14) Statute restricting right to jury trial in civil suits at common
law.[48]
(15) Statute restricting drilling or parading in any city by any body of
men without license of the Governor. "The right voluntarily to associate
together as a military company or organization, or to drill * * *,
without, and independent of, an act of Congress or law of the State
authorizing the same, is not an attribute of national citizenship."[49]
(16) Provision for prosecution upon information, and for a jury (except
in capital cases) of eight persons.[50] Upon an extended review of the
cases, the Court held that "the privileges and immunities of citizens of
the United States do not necessarily include all the rights protected by
the first eight amendments to the Federal Constitution against the
powers of the Federal Government"; and specifically, that the right to
be tried for an offense only upon indictment, and by a jury of 12, rests
with the State governments and is not protected by the Fourteenth
Amendment. "Those are not distinctly privileges or immunities [of
national citizenship] where everyone has the same as against the Federal
Government, whether citizen or not." Similarly, freedom from testimonial
compulsion, or self-incrimination, is not "an immunity that is protected
by the Fourteenth Amendment against State invasion."[51]
(17) Statute penalizing the becoming or remaining a member of any
oath-bound association (other than benevolent orders, etc.,) with
knowledge that the association has failed to file its constitution and
membership lists. The privilege of remaining a member of such an
association, "if it be a privilege arising out of citizenship at all,"
is an incident of State rather than United States citizenship.[52]
(18) Statute allowing a State to appeal in criminal cases for errors of
law and to retry the accused.[53]
(19) Statute making the payment of poll taxes a prerequisite to the
right to vote.[54]
(20) Statute whereby deposits in banks outside the State are taxed at
50c per $100 and deposits in banks within the State are taxed at 10c per
$100. "* * * the right to carry out an incident to a trade, business or
calling such as the deposit of money in banks is not a privilege of
national citizenship."[55]
(21) The right to become a candidate for State office is a privilege of
State citizenship, not national citizenship.[56]
(22) The Illinois Election Code which requires that a petition to form
and nominate candidates for a new political party be signed by at least
200 voters from each of at least 50 of the 102 counties in the State,
notwithstanding that 52% of the voters reside in only one county and
87%, in the 49 most populous counties.[57]
Due Process of Law Clause
HISTORICAL DEVELOPMENT
Although many years after ratification the Court ventured the not very
informative observation that the Fourteenth Amendment "operates to
extend * * * the same protection against arbitrary State legislation,
affecting life, liberty and property, as is offered by the Fifth
Amendment,"[58] and that "ordinarily if an act of Congress is valid
under the Fifth Amendment it would be hard to say that a State law in
like terms was void under the Fourteenth,"[59] the significance of the
due process clause as a restraint on State action appears to have been
grossly underestimated by litigants no less than by the Court in the
years immediately following its adoption. From the outset of our
constitutional history due process of law as it occurs in the Fifth
Amendment had been recognized as a restraint upon government, but, with
one conspicuous exception,[60] only in the narrower sense that a
legislature must provide "due process for the enforcement of law"; and
it was in accordance with this limited appraisal of the clause that the
Court disposed of early cases arising thereunder.
Thus, in the Slaughter-House Cases,[61] in which the clause was timidly
invoked by a group of butchers challenging on several grounds the
validity of a Louisiana statute which conferred upon one corporation the
exclusive privilege of butchering cattle in New Orleans, the Court
declared that the prohibition against a deprivation of property "has
been in the Constitution since the adoption of the Fifth Amendment, as a
restraint upon the Federal power. It is also to be found in some form of
expression in the constitutions of nearly all the States, as a restraint
upon the power of the States. * * * We are not without judicial
interpretation, therefore, both State and National, of the meaning of
this clause. And it is sufficient to say that under no construction of
that provision that we have ever seen, or any that we deem admissible,
can the restraint imposed by the State of Louisiana upon the exercise of
their trade by the butchers of New Orleans be held to be a deprivation
of property within the meaning of that provision."[62] Four years later,
in Munn _v._ Illinois,[63] the Court again refused to interpret the due
process clause as invalidating State legislation regulating the rates
charged for the transportation and warehousing of grain. Overruling
contentions that such legislation effected an unconstitutional
deprivation of property by preventing the owner from earning a
reasonable compensation for its use and by transferring to the public an
interest in a private enterprise, Chief Justice Waite emphasized that
"the great office of statutes is to remedy defects in the common law as
they are developed, * * * We know that this power [of rate regulation]
may be abused; but that is no argument against its existence. For
protection against abuses by legislatures the people must resort to the
polls, not to the courts."[64]
Deploring such attempts, nullified consistently in the preceding cases,
to convert the due process clause into a substantive restraint on the
powers of the States, Justice Miller in Davidson _v._ New Orleans[65]
obliquely counseled against a departure from the conventional
application of the clause, albeit he acknowledged the difficulty of
arriving at a precise, all inclusive, definition thereof. "It is not a
little remarkable," he observed, "that while this provision has been in
the Constitution of the United States, as a restraint upon the authority
of the Federal Government, for nearly a century, and while, during all
that time, the manner in which the powers of that government have been
exercised has been watched with jealousy, and subjected to the most
rigid criticism in all its branches, this special limitation upon its
powers has rarely been invoked in the judicial forum or the more
enlarged theatre of public discussion. But while it has been part of the
Constitution, as a restraint upon the power of the States, only a very
few years, the docket of this court is crowded with cases in which we
are asked to hold that State courts and State legislatures have deprived
their own citizens of life, liberty, or property without due process of
law. There is here abundant evidence that there exists some strange
misconception of the scope of this provision as found in the Fourteenth
Amendment. In fact, it would seem, from the character of many of the
cases before us, and the arguments made in them, that the clause under
consideration is looked upon as a means of bringing to the test of the
decision of this court the abstract opinions of every unsuccessful
litigant in a State court of the justice of the decision against him,
and of the merits of the legislation on which such a decision may be
founded. If, therefore, it were possible to define what it is for a
State to deprive a person of life, liberty, or property without due
process of law, in terms which would cover every exercise of power thus
forbidden to the State, and exclude those which are not, no more useful
construction could be furnished by this or any other court to any part
of the fundamental law. But, apart from the imminent risk of a failure
to give any definition which would be at once perspicuous,
comprehensive, and satisfactory, there is wisdom, * * *, in the
ascertaining of the intent and application of such an important phrase
in the Federal Constitution, by the gradual process of judicial
inclusion and exclusion, as the cases presented for decision shall
require, * * *"[66]
In thus persisting in its refusal to review, on other than procedural
grounds, the constitutionality of State action, the Court was rejecting
additional business; but a bare half-dozen years later, in again
reaching a result in harmony with past precedents, the Justices gave
fair warning of the imminence of a modification of their views. Thus,
after noting that the due process clause, by reason of its operation
upon "all the powers of government, legislative as well as executive and
judicial," could not be appraised solely in terms of the "sanction of
settled usage," Justice Mathews, speaking for the Court in Hurtado _v._
California,[67] declared that, "arbitrary power, enforcing its edicts to
the injury of the persons and property of its subjects, is not law,
whether manifested as the decree of a personal monarch or of an
impersonal multitude. And the limitations imposed by our constitutional
law upon the action of the governments, both State and national, are
essential to the preservation of public and private rights,
notwithstanding the representative character of our political
institutions. The enforcement of these limitations by judicial process
is the device of self-governing communities to protect the rights of
individuals and minorities, as well against the power of numbers, as
against the violence of public agents transcending the limits of lawful
authority, even when acting in the name and wielding the force of the
government."[68] Thus were the States put on notice that every species
of State legislation, whether dealing with procedural or substantive
rights, was subject to the scrutiny of the Court when the question of
its essential justice is raised.
Police Power: Liberty: Property
What induced the Court to dismiss its fears of upsetting the balance in
the distribution of powers under the Federal System and to enlarge its
own supervisory powers over state legislation were the appeals more and
more addressed to it for adequate protection of property rights against
the remedial social legislation which the States were increasingly
enacting in the wake of industrial expansion. At the same time the added
emphasis on the due process clause which satisfaction of these requests
entailed afforded the Court an opportunity to compensate for its earlier
virtual nullification of the privileges and immunities clause of the
amendment. So far as such modification of its position needed to be
justified in legal terms, theories concerning the relation of government
to private rights were available to demonstrate the impropriety of
leaving to the state legislatures the same ample range of police power
they had enjoyed prior to the Civil War. Preliminary, however, to this
consummation the Slaughter-House Cases and Munn _v._ Illinois had to be
overruled in part, at least, and the views of the dissenting Justices in
those cases converted into majority doctrine.
About twenty years were required to complete this process, in the course
of which the restricted view of the police power advanced by Justice
Field in his dissent in Munn _v._ Illinois,[69] namely, that it is
solely a power to prevent injury, was in effect ratified by the Court
itself. This occurred in 1887, in Mugler _v._ Kansas,[70] where the
power was defined as embracing no more than the power to promote public
health, morals, and safety. During the same interval, ideas embodying
the social compact and natural rights, which had been espoused by
Justice Bradley in his dissent in the Slaughter-House Cases,[71] had
been transformed tentatively into constitutionally enforceable
limitations upon government,[72] with the consequence that the States,
in exercising their police power, could foster only those purposes of
health, morals, and safety which the Court had enumerated and could
employ only such means as would not unreasonably interfere with the
fundamental natural rights of liberty and property, which Justice
Bradley had equated with freedom to pursue a lawful calling and to make
contracts for that purpose.[73]
So having narrowed the scope of the State's police power in deference to
the natural rights of liberty and property, the Court next proceeded to
read into the latter currently accepted theories of _laissez faire_
economics, reinforced by the doctrine of evolution as elaborated by
Herbert Spencer, to the end that "liberty", in particular, became
synonymous with governmental hands-off in the field of private economic
relations. In Budd _v._ New York,[74] decided in 1892, Justice Brewer in
a dictum declared: "The paternal theory of government is to me odious.
The utmost possible liberty to the individual, and the fullest possible
protection to him and his property, is both the limitation and duty of
government." And to implement this point of view the Court next
undertook to water down the accepted maxim that a State statute must be
presumed to be valid until clearly shown to be otherwise.[75] The first
step was taken with the opposite intention. This occurred in Munn _v._
Illinois,[76] where the Court, in sustaining the legislation before it,
declared: "For our purposes we must assume that, if a state of facts
could exist that would justify such legislation, it actually did exist
when the statute now under consideration was passed."[77] Ten years
later, in Mugler _v._ Kansas[78] this procedure was improved upon, and a
State-wide anti-liquor law was sustained on the basis of the proposition
that deleterious social effects of the excessive use of alcoholic
liquors were sufficiently notorious for the Court to be able to take
notice of them; that is to say, for the Court to review and appraise
the considerations which had induced the legislature to enact the
statute in the first place.[79] However, in Powell _v._
Pennsylvania,[80] decided the following year, the Court, being
confronted with a similar act involving oleomargarine, concerning which
it was unable to claim a like measure of common knowledge, fell back
upon the doctrine of presumed validity, and declaring that "it does not
appear upon the face of the statute, or from any of the facts of which
the Court must take judicial cognizance, that it infringes rights
secured by the fundamental law, * * *"[81] sustained the measure.
In contrast to the presumed validity rule under which the Court
ordinarily is not obliged to go beyond the record of evidence submitted
by the litigants in determining the validity of a statute, the judicial
notice principle, as developed in Mugler _v._ Kansas, carried the
inference that unless the Court, independently of the record, is able to
ascertain the existence of justifying facts accessible to it by the
rules governing judicial notice, it will be obliged to invalidate a
police power regulation as bearing no reasonable or adequate relation to
the purposes to be subserved by the latter; namely, health, morals, or
safety. For appraising State legislation affecting neither liberty nor
property, the Court found the rule of presumed validity quite
serviceable; but for invalidating legislation constituting governmental
interference in the field of economic relations, and, more particularly,
labor-management relations, the Court found the principle of judicial
notice more advantageous. This advantage was enhanced by the disposition
of the Court, in litigation embracing the latter type of legislation, to
shift the burden of proof from the litigant charging unconstitutionality
to the State seeking enforcement. To the latter was transferred the task
of demonstrating that a statute interfering with the natural right of
liberty or property was in fact "authorized" by the Constitution and not
merely that the latter did not expressly prohibit enactment of the same.
Liberty of Contract--Labor Relations
Although occasionally acknowledging in abstract terms that freedom of
contract is not absolute but is subject to restraint by the State in
the exercise of its police powers, the Court, in conformity with the
aforementioned theories of economics and evolution, was in fact
committed to the principle that freedom of contract is the general rule
and that legislative authority to abridge the same could be justified
only by exceptional circumstances. To maintain such abridgments at a
minimum, the Court intermittently employed the rule of judicial notice
in a manner best exemplified by a comparison of the early cases of
Holden _v._ Hardy[82] and Lochner _v._ New York,[83] decisions which
bear the same relation to each other as Powell _v._ Pennsylvania[84] and
Mugler _v._ Kansas.[85]
In Holden _v._ Hardy, decided in 1898, the Court, in reliance upon the
principle of presumed validity, allowed the burden of proof to remain
with those attacking the validity of a statute and upheld a Utah act
limiting the period of labor in mines to eight hours per day. Taking
cognizance of the fact that labor below the surface of the earth was
attended by risk to person and to health and for these reasons had long
been the subject of State intervention, the Court registered its
willingness to sustain a limitation on freedom of contract which a State
legislature had adjudged "necessary for the preservation of health of
employees," and for which there were "reasonable grounds for believing
that * * * [it was] supported by the facts."[86]
Seven years later, however, a radically altered court was predisposed in
favor of the doctrine of judicial notice, through application of which
it arrived at the conclusion, in Lochner _v._ New York, that a law
restricting employment in bakeries to ten hours per day and 60 hours per
week was an unconstitutional interference with the right of adult
laborers, _sui juris_, to contract with respect to their means of
livelihood. Denying that in so holding that the Court was in effect
substituting its own judgment for that of the legislature, Justice
Peckham, nevertheless, maintained that whether the act was within the
police power of the State was a "question that must be answered by the
Court"; and then, in disregard of the accumulated medical evidence
proffered in support of the act, uttered the following observation: "In
looking through statistics regarding all trades and occupations, it may
be true that the trade of a baker does not appear to be as healthy as
some trades, and is also vastly more healthy than still others. To the
common understanding the trade of a baker has never been regarded as an
unhealthy one. * * * It might be safely affirmed that almost all
occupations more or less affect the health. * * * But are we all, on
that account, at the mercy of the legislative majorities?"[87]
Of two dissenting opinions filed in the case, one, prepared by Justice
Harlan, stressed the abundance of medical testimony tending to show that
the life expectancy of bakers was below average, that their capacity to
resist diseases was low, and that they were peculiarly prone to suffer
irritations of the eyes, lungs, and bronchial passages; and concluded
that the very existence of such evidence left the reasonableness of the
measure under review open to discussion and that the the latter fact, of
itself, put the statute within legislative discretion.
"'Responsibility,' according to Justice Harlan, 'therefore, rests upon
the legislators, not upon the courts. No evils arising from such
legislation could be more far reaching than those that might come to our
system of government if the judiciary, abandoning the sphere assigned to
it by the fundamental law, should enter the domain of legislation, and
upon grounds merely of justice or reason or wisdom annul statutes that
had received the sanction of the people's representatives. * * * The
public interest imperatively demand--that legislative enactments should
be recognized and enforced by the courts as embodying the will of the
people, unless they are plainly and palpably beyond all question in
violation of the fundamental law of the Constitution.'"[88]
The second dissenting opinion written by Justice Holmes has received the
greater measure of attention, however, for the views expressed therein
were a forecast of the line of reasoning to be followed by the Court
some decades later. According to Justice Holmes: "This case is decided
upon an economic theory which a large part of the country does not
entertain. If it were a question whether I agreed with that theory, I
should desire to study it further and long before making up my mind. But
I do not conceive that to be my duty, because I strongly believe that my
agreement or disagreement has nothing to do with the right of a majority
to embody their opinions in law. It is settled by various decisions of
this Court that State constitutions and State laws may regulate life in
many ways which we as legislators might think as injudicious or if you
like as tyrannical as this, and which equally with this interfere with
the liberty to contract. * * * The Fourteenth Amendment does not enact
Mr. Herbert Spencer's Social Statics. * * * But a Constitution is not
intended to embody a particular economic theory, whether of paternalism
and the organic relation of the citizen to the State or of _laissez
faire_. It is made for people of fundamentally differing views, and the
accident of our finding certain opinions natural and familiar or novel
and even shocking ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the Constitution * * * I
think that the word 'liberty,' in the Fourteenth Amendment is perverted
when it is held to prevent the natural outcome of a dominant opinion,
unless it can be said that a rational and fair man necessarily would
admit that the statute proposed would infringe fundamental principles as
they have been understood by the traditions of our people and our
law."[89]
In part, Justice Holmes's criticism of his colleagues was unfair, for
his "rational and fair man" could not function in a vacuum, and, in
appraising the constitutionality of State legislation, could no more
avoid being guided by his preferences or "economic predilections" than
were the Justices constituting the majority. Insofar as he was resigned
to accept the broader conception of due process of law in preference to
the historical concept thereof as pertaining to the enforcement rather
than the making of law and did not affirmatively advocate a return to
the maxim that the possibility of abuse is no argument against
possession of a power, Justice Holmes, whether consciously or not, was
thus prepared to observe, along with his opponents in the majority, the
very practices which were deemed to have rendered inevitable the
assumption by the Court of a "perpetual censorship" over State
legislation. The basic distinction, therefore, between the positions
taken by Justice Peckham for the majority and Justice Holmes, for what
was then the minority, was the espousal of the conflicting doctrines of
judicial notice by the former and of presumed validity by the latter.
Although the Holmes dissent bore fruit in time in the form of the
Bunting _v._ Oregon[90] and Muller _v._ Oregon[91] decisions overruling
the Lochner Case, the doctrinal approach employed in the earlier of
these by Justice Brewer continued to prevail until the depression in the
1930's. In view of the shift in the burden of proof which application of
the principle of judicial notice entailed, counsel defending the
constitutionality of social legislation developed the practice of
submitting voluminous factual briefs replete with medical or other
scientific data intended to establish beyond question a substantial
relationship between the challenged statute and public health, safety,
or morals. Whenever the Court was disposed to uphold measures pertaining
to industrial relations, such as laws limiting hours[92] of work, it
generally intimated that the facts thus submitted by way of
justification had been authenticated sufficiently for it to take
judicial cognizance thereof; but whenever it chose to invalidate
comparable legislation, such as enactments establishing minimum wages
for women and children,[93] it brushed aside such supporting data,
proclaimed its inability to perceive any reasonable connection between
the statute and the legitimate objectives of health or safety, and
condemned the former as an arbitrary interference with freedom of
contract.
During the great Depression, however, the _laissez faire_ tenet of
self-help was supplanted by the belief that it is peculiarly the duty of
government to help those who are unable to help themselves; and to
sustain remedial legislation enacted in conformity with the latter
philosophy, the Court had to revise extensively its previously
formulated concepts of "liberty" under the due process clause. Not only
did the Court take judicial notice of the demands for relief arising
from the depression when it overturned prior holdings and sustained
minimum wage legislation,[94] but in upholding State legislation
designed to protect workers in their efforts to organize and bargain
collectively, the Court virtually had to exclude from consideration the
employer's contention that such legislation interfered with his liberty
of contract in contravention of the due process clause and to exalt as a
fundamental right the correlative liberty of employees, which right the
State legislatures were declared to be competent to protect against
interference from private sources. To enable these legislatures to
balance the equities, that is, to achieve equality in bargaining power
between employer and employees, the Court thus sanctioned a diminution
of liberty in the sense of the employer's freedom of contract and a
corresponding increase in the measure of liberty enjoyable by the
workers. To the extent that it acknowledged that liberty of the
individual may be infringed by the coercive conduct of other individuals
no less than by the arbitrary action of public officials, the Court in
effect transformed the due process clause into a source of encouragement
to State legislatures to intervene affirmatively by way of mitigating
the effects of such coercion. By such modification of its views,
liberty, in the constitutional sense of freedom resulting from restraint
upon government, was replaced by the civil liberty which an individual
enjoys by virtue of the restraints which government, in his behalf,
imposes upon his neighbors.
DEFINITIONS
"Persons" Defined
Notwithstanding the historical controversy that has been waged as to
whether the framers of the Fourteenth Amendment intended the word,
"person," to mean only natural persons, or whether the word, "person,"
was substituted for the word, "citizen," with a view to protecting
corporations from oppressive state legislation,[95] the Supreme Court,
as early as the Granger cases,[96] decided in 1877, upheld on the merits
various state laws without raising any question as to the status of
railway corporation-plaintiffs to advance due process contentions. There
is no doubt that a corporation may not be deprived of its property
without due process of law;[97] and although prior decisions have held
that the "liberty" guaranteed by the Fourteenth Amendment is the liberty
of natural, not artificial, persons,[98] nevertheless a newspaper
corporation was sustained, in 1936, in its objection that a state law
deprived it of liberty of press.[99] As to the natural persons protected
by the due process clause, these include all human beings regardless of
race, color, or citizenship.[100]
Ordinarily, the mere interest of an official as such, in contrast to an
actual injury sustained by a natural or artificial person through
invasion of personal or property rights, has not been deemed adequate to
enable him to invoke the protection of the Fourteenth Amendment against
State action.[101] Similarly, municipal corporations are viewed as
having no standing "to invoke the provisions of the Fourteenth Amendment
in opposition to the will of their creator," the State.[102] However,
State officers are acknowledged to have an interest, despite their not
having sustained any "private damage," in resisting an "endeavor to
prevent the enforcement of laws in relation to which they have official
duties," and, accordingly, may apply to federal courts for the "review
of decisions of State courts declaring State statutes which [they] seek
to enforce to be repugnant to the" Fourteenth Amendment.[103]
Due Process and the Police Power
Definition.--The police power of a State today embraces
regulations designed to promote the public convenience or the general
prosperity as well as those to promote public safety, health, morals,
and is not confined to the suppression of what is offensive, disorderly,
or unsanitary, but extends to what is for the greatest welfare of the
State.[104]
Limitations on the Police Power.--Because the police power of a
State is the least limitable of the exercises of government, such
limitations as are applicable thereto are not readily definable. Being
neither susceptible of circumstantial precision, nor discoverable by any
formula, these limitations can be determined only through appropriate
regard to the subject matter of the exercise of that power.[105] "It is
settled [however] that neither the 'contract' clause nor the 'due
process' clause had the effect of overriding the power of the State to
establish all regulations that are reasonably necessary to secure the
health, safety, good order, comfort, or general welfare of the
community; that this power can neither be abdicated nor bargained away,
and is inalienable even by express grant; and that all contract and
property [or other vested] rights are held subject to its fair
exercise."[106] Insofar as the police power is utilized by a State, the
means employed to effect its exercise can be neither arbitrary nor
oppressive, but must bear a real and substantial relation to an end
which is public, specifically, the public health, public safety, or
public morals, or some other phase of the general welfare.[107]
The general rule is that if a police power regulation goes too far, it
will be recognized as a taking of property for which compensation must
be paid.[108] Yet where mutual advantage is a sufficient compensation,
an ulterior public advantage may justify a comparatively insignificant
taking of private property for what in its immediate purpose seems to be
a private use.[109] On the other hand, mere "cost and inconvenience
(different words, probably, for the same thing) would have to be very
great before they could become an element in the consideration of the
right of a State to exert its reserved power or its police power."[110]
Moreover, it is elementary that enforcement of uncompensated obedience
to a regulation passed in the legitimate exertion of the police power is
not a taking without due process of law.[111] Similarly, initial
compliance with a regulation which is valid when adopted occasions no
forfeiture of the right to protest when that regulation subsequently
loses its validity by becoming confiscatory in its operation.[112]
"Liberty" in General
Definition.--"While * * * [the] Court has not attempted to
define with exactness the liberty thus guaranteed, the term has received
much consideration and some of the included things have been definitely
stated. Without doubt, it denotes not merely freedom from bodily
restraint but also right of the individual to contract, to engage in any
of the common occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to worship God according
to the dictates of his own conscience, and generally to enjoy those
privileges long recognized at common law as essential to the orderly
pursuit of happiness by free men."[113]
Personal Liberty: Compulsory Vaccination: Sexual
Sterilization.--Personal liberty is not infringed by a compulsory
vaccination law[114] enacted by a State or its local subdivisions
pursuant to the police power for the purpose of protecting inhabitants
against the spread of smallpox. "The principle that sustains compulsory
vaccination is [also] broad enough to cover" a statute providing for
sexual sterilization of inmates of State supported institutions who are
found to be afflicted with an hereditary form of insanity or
imbecility.[115] Equally constitutional is a statute which provides for
the commitment, after probate proceedings, of a psychopathic
personality, defined by the State court as including those persons who,
by habitual course of misconduct in sexual matters, have evidenced utter
lack of power to control their sexual impulses and are likely to commit
injury.[116] However, a person cannot be deprived of his liberty under a
vague statute which subjected to fine or imprisonment, as a "gangster,"
any one not engaged in any lawful occupation, known to be a member of a
gang consisting of two or more persons, and who had been convicted of a
crime in any State in the Union.[117]
Liberties Pertaining to Education (of Teachers, Parents,
Pupils).--A State law forbidding the teaching in any private
denominational, parochial, or public school, of any modern language,
other than English, to any child who has not successfully passed the
eighth grade was declared, in Meyer _v._ Nebraska[118] to be an
unconstitutional interference with the right of a foreign language
teacher to teach and "of parents to engage him so to instruct their
children." Although the Court did incorporate into its opinion in this
case the general definition of "liberty" set forth above, its holding
was substantially a reaffirmation of the liberty, in this instance of
the teacher, to pursue a lawful calling free and clear of arbitrary
restraints imposed by the State. In Pierce _v._ Society of the
Sisters,[119] the Court elaborated further upon the liberty of parents
when it declared that a State law requiring compulsory public school
education of children, aged eight to sixteen, "unreasonably interferes
with the liberty of parents and guardians to direct the upbringing and
education of children under their control."[120] As to a student,
neither his liberty to pursue his happiness nor his property or property
rights were infringed when he was denied admission to a State university
for refusing to comply with a law requiring renunciation of allegiance
to, or affiliation with, a Greek letter fraternity. The right to attend
such an institution was labelled, not an absolute, but a conditional
right; inasmuch as the school was wholly under the control of the State,
the latter was competent to enact measures such as the present one
regulating internal discipline thereat.[121] Similarly, "the Fourteenth
Amendment as a safeguard of 'liberty' [does not] confer the right to be
students in the State university free from obligation to take military
training as one of the conditions of attendance."[122]
Liberties Safeguarded by the First Eight Amendments.--In what
has amounted to a constitutional revolution, the Court, since the end of
World War I, has substantially enlarged the meaning of the term,
"liberty," appearing in the due process clause of the Fourteenth
Amendment. As a consequence of this altered interpretation, States and
their local subdivisions have been restrained in their attempts to
interfere with the press, or with the freedom of speech, assembly, or
religious precepts of their inhabitants, and prevented from withholding
from persons charged with commission of a crime certain privileges
deemed essential to the enjoyment of a "fair trial." Cases revealing to
what extent there has been incorporated into the "liberty" of the due
process clause of the Fourteenth Amendment the substance of the First
Amendment are set forth in the discussion presented under the latter
amendment; whereas the decisions indicating the scope of the absorption
into the Fourteenth Amendment of the procedural protection afforded by
the Fourth, Fifth, Sixth, and Eighth Amendments are included in the
material hereinafter presented under the subtitle, Criminal Proceedings.
Liberty of Contract (Labor Relations)
In General.--Liberty of contract, a concept originally advanced
by Justices Bradley and Field in the Slaughter-House Cases,[123] was
elevated to the status of accepted doctrine in 1897 in Allgeyer _v._
Louisiana.[124] Applied repeatedly in subsequent cases as a restraint on
State power, freedom of contract has also been alluded to as a property
right, as is evident in the language of the Court in Coppage _v._
Kansas:[125] "Included in the right of personal liberty and the right of
private property--partaking of the nature of each--is the right to make
contracts for the acquisition of property. Chief among such contracts is
that of personal employment, by which labor and other services are
exchanged for money or other forms of property. If this right be struck
down or arbitrarily interfered with, there is a substantial impairment
of liberty in the long-established constitutional sense."
However, by a process of reasoning that was almost completely discarded
during the depression, the Court was nevertheless able, prior thereto,
to sustain State ameliorative legislation by acknowledging that freedom
of contract was "a qualified and not an absolute right. * * * Liberty
implies the absence of arbitrary restraint, not immunity from reasonable
regulations and prohibitions imposed in the interests of the community.
* * * In dealing with the relation of the employer and employed, the
legislature has necessarily a wide field of discretion in order that
there may be suitable protection of health and safety, and that peace
and good order may be promoted through regulations designed to insure
wholesome conditions of work and freedom from oppression."[126] Through
observance of such qualifying statement the Court was induced to uphold
the following types of labor legislation.
Laws Regulating Hours of Labor.--The due process clause has
been construed as permitting enactment by the States of laws: (1)
limiting the hours of labor in mines and smelters to eight hours per
day;[127] (2) prescribing eight hours a day or a maximum of 48 hours per
week as a limitation of the hours at which women may labor;[128] and (3)
providing that no person shall work in any mill, etc., more than ten
hours per day (with exceptions) but permitting overtime, not to exceed
three hours a day, on condition that it is paid at the rate of one and
one-half times the regular wage.[129] Because of the almost plenary
powers of the State and its municipal subdivisions to determine the
conditions under which work shall go forward on public projects,
statutes limiting the hours of labor on public works were also upheld at
a relatively early date.[130]
Laws Regulating Labor in Mines.--The regulation of mines being
so patently within the police power, States have been upheld in the
enactment of laws providing for appointment of mining inspectors and
requiring payment of their fees by mine owners,[131] compelling
employment of only licensed mine managers and mine examiners, and
imposing upon mine owners liability for the wilful failure of their
manager and examiner to furnish a reasonably safe place for
workmen.[132] Other similar regulations which have been sustained have
included laws requiring that entries be of a specified width,[133] that
boundary pillars be installed between adjoining coal properties as a
protection against flood in case of abandonment,[134] and that
washhouses be provided for employees.[135]
Laws Prohibiting Employment of Children in Hazardous
Occupations.--To make effective its prohibition against the
employment of persons under 16 years of age in dangerous occupations, a
State has been held to be competent to require employers at their peril
to ascertain whether their employees are in fact below that age.[136]
Laws Regulating Payment of Wages.--No unconstitutional
deprivation of liberty of contract was deemed to have been occasioned by
a statute requiring redemption in cash of store orders or other
evidences of indebtedness issued by employers in payment of wages.[137]
Nor was any constitutional defect discernible in laws requiring
railroads to pay their employees semimonthly[138] and to pay them on the
day of discharge, without abatement or reduction, any funds due
them.[139] Similarly, freedom of contract was held not to be infringed
by an act requiring that miners, whose compensation was fixed on the
basis of weight, be paid according to coal in the mine car rather than
at a certain price per ton for coal screened after it has been brought
to the surface, and conditioning such payment on the presence of no
greater percentage of dirt or impurities than that ascertained as
unavoidable by the State Industrial Commission.[140]
Minimum Wage Laws.--The theory that a law prescribing minimum
wages for women and children violates due process by impairing freedom
of contract was finally discarded in 1937.[141] The current theory of
the Court, particularly when labor is the beneficiary of legislation,
was recently stated by Justice Douglas for a majority of the Court, in
the following terms: "Our recent decisions make plain that we do not sit
as a superlegislature to weigh the wisdom of legislation nor to decide
whether the policy which it expresses offends the public welfare. The
legislative power has limits * * *. But the state legislatures have
constitutional authority to experiment with new techniques; they are
entitled to their own standard of the public welfare; they may within
extremely broad limits control practices in the business-labor field, so
long as specific constitutional prohibitions are not violated and so
long as conflicts with valid and controlling federal laws are
avoided."[142] Proceeding from this basis the Court sustained a Missouri
statute giving employees the right to absent themselves four hours on
election day, between the opening and closing of the polls, without
deduction of wages for their absence. It was admitted that this was a
minimum wage law, but, said Justice Douglas, "the protection of the
right of suffrage under our scheme of things is basic and fundamental,"
and hence within the police power. "Of course," the Justice added, "many
forms of regulation reduce the net return of the enterprise * * * Most
regulations of business necessarily impose financial burdens on the
enterprise for which no compensation is paid. Those are part of the
costs of our civilization. Extreme cases are conjured up where an
employer is required to pay wages for a period that has no relation to
the legitimate end. Those cases can await decision as and when they
arise. The present law has no such infirmity. It is designed to
eliminate any penalty for exercising the right of suffrage and to remove
a practical obstacle to getting out the vote. The public welfare is a
broad and inclusive concept. The moral, social, economic, and physical
well-being of the community is one part of it; the political well-being,
another. The police power which is adequate to fix the financial burden
for one is adequate for the other. The judgment of the legislature that
time out for voting should cost the employee nothing may be a debatable
one. It is indeed conceded by the opposition to be such. But if our
recent cases mean anything, they leave debatable issues as respects
business, economic, and social affairs to legislative decision. We could
strike down this law only if we returned to the philosophy of the
_Lochner_, _Coppage_, and _Adkins_ cases."[143]
Workmen's Compensation Laws.--"This Court repeatedly has upheld
the authority of the States to establish by legislation departures from
the fellow-servant rule and other common-law rules affecting the
employer's liability for personal injuries to the employee.[144] * * *
These decisions have established the propositions that the rules of law
concerning the employer's responsibility for personal injury or death of
an employee arising in the course of employment are not beyond
alteration by legislation in the public interest; that no person has a
vested right entitling him to have these any more than other rules of
law remain unchanged for his benefit; and that, if we exclude arbitrary
and unreasonable changes, liability may be imposed upon the employer
without fault, and the rules respecting his responsibility to one
employee for the negligence of another and respecting contributory
negligence and assumption of risk are subject to legislative
change."[145]
Accordingly, a State statute which provided an exclusive system to
govern the liabilities of employers and the rights of employees and
their dependents, in respect of compensation for disabling injuries and
death caused by accident in certain hazardous occupations,[146] was held
not to work a deprivation of property without due process of law in
rendering the employer liable irrespective of the doctrines of
negligence, contributory negligence, assumption of risk, and negligence
of fellow-servants, nor in depriving the employee, or his dependents, of
the higher damages which, in some cases, might be rendered under these
doctrines.[147] Likewise, an act which allowed an injured employee an
election of remedies permitting restricted recovery under a compensation
law although guilty of contributory negligence, and full compensatory
damages under the Employers' Liability Act did not deprive an employer
of his property without due process of law.[148] Similarly, an elective
statute has been sustained which provided that, in actions against
employers rejecting the system, the inquiry should be presumed to have
resulted directly from the employer's negligence and the burden of
rebutting said presumption shall rest upon the latter.[149]
Contracts limiting liability for injuries, consummated in advance of
the injury received, may be prohibited by the State, which may further
stipulate that subsequent acceptance of benefits under such contracts
shall not constitute satisfaction of a claim for injuries thereafter
sustained.[150] Also, as applied to a nonresident alien employee hired
within the State but injured on the outside, an act forbidding any
contracts exempting employers from liability for injuries outside the
State has been construed as not denying due process to the
employer.[151] The fact that a State, after having allowed employers to
cover their liability with a private insurer, subsequently withdrew that
privilege and required them to contribute to a State Insurance Fund was
held to effect no unconstitutional deprivation as applied to an employer
who had obtained protection from an insurance company before this change
went into effect.[152] Likewise, as long as the right to come under a
workmen's compensation statute is optional with an employer, the latter,
having chosen to accept benefits thereof, is estopped from attempting to
escape its burdens by challenging the constitutionality of a provision
thereof which makes the finding of fact of an industrial commission
conclusive if supported by any evidence regardless of its
preponderance.[153]
When, by the terms of a workmen's compensation statute, the wrongdoer,
in case of wrongful death, is obliged to indemnify the employer or the
insurance carrier of the employer of the decedent, in the amount which
the latter were required under said act to contribute into special
compensation funds, no unconstitutional deprivation of the wrongdoer's
property was discernible.[154] By the same course of reasoning neither
the employer nor the carrier was held to have been denied due process by
another provision in an act requiring payments by them, in case an
injured employee dies without dependents, into special funds to be used
for vocational rehabilitation or disability compensation of injured
workers of other establishments.[155] Compensation also need not be
based exclusively on loss of earning power, and an award authorized by
statute for injuries resulting in disfigurement of the face or head,
independent of compensation for inability to work, has been conceded to
be neither an arbitrary nor oppressive exercise of the police
power.[156]
Collective Bargaining.--During the 1930's, liberty, in the
sense of freedom of contract, judicially translated into what one
Justice has labelled the Allgeyer-Lochner-Adair-Coppage doctrine,[157]
lost its potency as an obstacle to the enforcement of legislation
calculated to enhance the bargaining capacity of workers as against that
already possessed by their employers. Prior to the manifestation, in
Senn _v._ Tile Layers Protective Union,[158] decided in 1937, of a
greater willingness to defer to legislative judgment as to the wisdom
and need of such enactments, the Court had, on occasion, sustained
measures such as one requiring every corporation to furnish, upon
request, to any employee, when discharged or leaving its service, a
letter, signed by the superintendent or manager, setting forth the
nature and duration of his service to the corporation and stating truly
the cause of his leaving.[159] Added provisions that such letters shall
be on plain paper selected by the employee, signed in ink and sealed,
and free from superfluous figures, and words, were also sustained as not
amounting to any unconstitutional deprivation of liberty and
property.[160] On the ground that the right to strike is not absolute,
the Court in a similar manner upheld a statute by the terms of which an
officer of a labor union was punished for having ordered a strike for
the purpose of enforcing a payment to a former employee of a stale claim
for wages.[161]
The significance of the case of Senn _v._ Tile Layers Protective
Union[162] as an indicator of the range of the alteration of the Court's
views concerning the constitutionality of State labor legislation
derives in part from the fact that the statute upheld therein was not
appreciably different from that voided in Truax _v._ Corrigan.[163] Both
statutes were alike in that they withheld the remedy of injunction; but
by reason of the fact that the invalidated act did not contain the more
liberal and also more precise definition of a labor dispute set forth in
the later enactment and, above all, did not affirmatively purport to
sanction peaceful picketing only, the Court was enabled to maintain that
Truax _v._ Corrigan, insofar as "the statute there in question was * * *
applied to legalize conduct which was not simply peaceful picketing,"
was distinguishable. Specifically, the Court in the Senn Case gave its
approval to the application of a Wisconsin statute which authorized the
giving of publicity to labor disputes, declared peaceful picketing and
patrolling lawful, and prohibited the granting of injunctions against
such conduct to a controversy in which the matter at issue was the
refusal of a tiling contractor employing nonunion workmen to sign a
closed shop agreement unless a provision requiring him to abstain from
working in his business as a tile layer or helper should be eliminated.
Inasmuch as the enhancement of job opportunities for members of the
union was a legitimate objective, the State was held competent to
authorize the fostering of that end by peaceful picketing, and the fact
that the sustaining of the union in its efforts at peaceful persuasion
might have the effect of preventing Senn from continuing in business as
an independent entrepreneur was declared to present an issue of public
policy exclusively for legislative determination.[164]
The policy of many State legislatures in recent years, however, has been
to adopt legislation designed to control the abuse of the enormous
economic power which previously enacted protective measures enabled
labor unions to amass; and it is the constitutionality of such
restrictive measures that has lately concerned the Court. Thus, in
Railway Mail Association _v._ Corsi,[165] section 43 of New York's Civil
Rights Law which forbids a labor organization to deny any person
membership by reason of race, color, or creed, or to deny any member, on
similar grounds, equal treatment in designation for employment,
promotion, or dismissal by an employer was sustained, when applied to an
organization of railway mail clerks, as not interfering unlawfully with
the latter's right to choose its members nor abridging its property
rights, or liberty of contract. Inasmuch as it held "itself out to
represent the general business needs of employees" and functioned "under
the protection of the State," the union was deemed to have forfeited the
right to claim exemption from legislation protecting workers against
discriminatory exclusion.[166] Similarly approved as constitutional in
Lincoln Union _v._ Northwestern Co.[167] and American Federation of
Labor _v._ American Sash Co.[168] were State laws outlawing the closed
shop; and when labor unions invoked in their own defense the freedom of
contract doctrine that hitherto had been employed to nullify legislation
intended for their protection, the Court, speaking through Justice Black
announced its refusal "to return, * * * to * * * [a] due process
philosophy that has been deliberately discarded. * * * The due process
clause," it maintained, does not "forbid a State to pass laws clearly
designed to safeguard the opportunity of nonunion workers to get and
hold jobs, free from discrimination against them because they are
nonunion workers."[169] Also in harmony with the last mentioned pair of
cases is Auto Workers _v._ Wisconsin Board[170] in which was upheld
enforcement of the Wisconsin Employment Peace Act which proscribed as an
unfair labor practice efforts of a union, after collective bargaining
negotiations had become deadlocked, to coerce an employer through a
"slow-down" in production achieved by the irregular, but frequent,
calling of union meetings during working hours without advance notice to
the employer or notice as to whether or when the employees would return,
and without informing him of the specific terms sought by such tactics.
"No one," declared the Court, can question "the State's power to police
coercion by * * * methods" which involve "considerable injury to
property and intimidation of other employees by threats."[171] Finally,
in Giboney _v._ Empire Storage Co.,[172] the Court acknowledged that no
violation of the Constitution results when a State law forbidding
agreements in restraint of trade is construed by State courts as
forbidding members of a union of ice peddlers from peacefully picketing
a wholesale ice distributor's place of business for the sole purpose of
inducing the latter not to sell to nonunion peddlers.
REGULATION OF CHARGES; "BUSINESSES AFFECTED WITH A PUBLIC INTEREST"
History
In endeavoring to measure the impact of the due process clause upon
efforts by the States to control the charges exacted by various
businesses for their services, the Supreme Court, almost from the
inception of the Fourteenth Amendment, has devoted itself to the
examination of two questions: (1) whether that clause precluded that
kind of regulation of certain types of business, and (2) the nature of
the restraint, if any, which this clause imposes on State control of
rates in the case of businesses as to which such control exists. For a
brief interval following the ratification of the Fourteenth Amendment,
the Supreme Court appears to have underestimated the significance of
this clause as a substantive restraint on the power of States to fix
rates chargeable by an industry deemed appropriately subject to such
controls. Thus, in Munn _v._ Illinois,[173] the first of the "Granger"
cases, in which maximum charges established by a State legislature for
Chicago grain elevator companies were challenged, not as being
confiscatory in character, but rather as a regulation beyond the power
of any State agency to impose, the Court, in an opinion that was largely
an _obiter dictum_, declared that the due process clause did not operate
as a safeguard against oppressive rates, that if regulation was
permissible, the severity thereof was within legislative discretion and
could be ameliorated only by resort to the polls. Not much time was
permitted to elapse, however, before the Court effected a complete
withdrawal from this position; and by 1890[174] it had fully converted
the due process clause into a positive restriction which the judicial
branch is duty bound to enforce whenever State agencies seek to impose
rates which, in its estimation, are arbitrary or unreasonable.
In contrast to the speed with which the Court arrived at those above
mentioned conclusions, more than fifty years were to elapse before it
developed its currently applicable formula for determining the propriety
of subjecting specific businesses to State regulation of their prices or
charges. Prior to 1934, unless a business were "affected with a public
interest," control of its prices, rates, or conditions of service was
viewed as an unconstitutional deprivation of liberty and property
without due process of law. During the period of its application,
however, this standard, "business affected with a public interest,"
never acquired any precise meaning; and as a consequence lawyers were
never able to identify all those qualities or attributes which
invariably distinguished a business so affected from one not so
affected. The best the Court ever offered by way of enlightenment was
the following classification of businesses subject to regulation,
prepared by Chief Justice Taft.[175] These were said to comprise: "(1)
Those [businesses] which are carried on under the authority of a public
grant of privileges which either expressly or impliedly imposes the
affirmative duty of rendering a public service demanded by any member of
the public. Such are the railroads, other common carriers and public
utilities. (2) Certain occupations, regarded as exceptional, the public
interest attaching to which, recognized from earliest times, has
survived the period of arbitrary laws by Parliament or Colonial
legislatures for regulating all trades and callings. Such are those of
the keepers of inns, cabs and grist mills. * * * (3) Businesses which
though not public at their inception may be fairly said to have risen to
be such and have become subject in consequence to some government
regulation. They have come to hold such a peculiar relation to the
public that this is superimposed upon them. In the language of the
cases, the owner by devoting his business to the public use, in effect
grants the public an interest in that use and subjects himself to public
regulation to the extent of that interest although the property
continues to belong to its private owner and to be entitled to
protection accordingly."
Through application of this now outmoded formula the Court found it
possible to sustain State laws regulating charges made by grain
elevators,[176] stockyards,[177] and tobacco warehouses,[178] and fire
insurance rates[179] and commissions paid to fire insurance agents.[180]
Voided, because the businesses sought to be controlled were deemed to be
not so affected, were State statutes fixing the price at which gasoline
may be sold,[181] or at which ticket brokers may resell tickets
purchased from theatres,[182] and limiting competition in the
manufacture and sale of ice through the withholding of licenses to
engage therein.[183]
Nebbia _v._ New York
In upholding, by a vote of five-to-four, a depression induced New York
statute fixing prices at which fluid milk might be sold, the Court, in
1934, finally shelved the concept of "a business affected with a public
interest."[184] Older decisions, insofar as they negatived a power to
control prices in businesses found not "to be clothed with a public use"
were now reviewed as resting, "finally, upon the basis that the
requirements of due process were not met because the laws were found
arbitrary in their operation and effect. Price control, like any other
form of regulation, is [now] unconstitutional only if arbitrary,
discriminatory, or demonstrably irrelevant to the policy the legislature
is free to adopt, and hence an unnecessary and unwarranted interference
with individual liberty." Conceding that "the dairy industry is not, in
the accepted sense of the phrase, a public utility"; that is, a
"business affected with a public interest," the Court in effect declared
that price control henceforth is to be viewed merely as an exercise by
the State of its police power, and as such is subject only to the
restrictions which due process of law imposes on arbitrary interference
with liberty and property. Nor was the Court disturbed by the fact that
a "scientific validity" had been claimed for the theories of Adam Smith
relating to the "price that will clear the market." However much the
minority might stress the unreasonableness of any artificial State
regulation interfering with the determination of prices by "natural
forces,"[185] the majority was content to note that the "due process
clause makes no mention of prices" and that "the courts are both
incompetent and unauthorized to deal with the wisdom of the policy
adopted or the practicability of the law enacted to forward it."
Having thus concluded that it is no longer the nature of the business
which determines the validity of a regulation of its rates or charges
but solely the reasonableness of the regulation, the Court had little
difficulty in upholding, in Olsen _v._ Nebraska,[186] a State law
prescribing the maximum commission which private employment agencies may
charge. Rejecting the contentions of the employment agencies that the
need for such protective legislation had not been shown, the Court held
that differences of opinion as to the wisdom, need, or appropriateness
of the legislation "suggest a choice which should be left to the
States"; and that there was "no necessity for the State to demonstrate
before us that evils persist despite the competition" between public,
charitable, and private employment agencies. The older case of Ribnik
_v._ McBride,[187] which founded the invalidation of similar legislation
upon the now obsolete concept of a "business affected with a public
interest" was expressly overruled.
JUDICIAL REVIEW OF PUBLICLY DETERMINED RATES AND CHARGES
Development
In Munn _v._ Illinois,[188] its initial holding concerning the
applicability of the Fourteenth Amendment to governmental price
fixing,[189] the Court, not only asserted that governmental regulation
of rates charged by public utilities and allied businesses was within
the States' police power but added that the determination of such rates
by a legislature was conclusive and not subject to judicial review or
revision. Expanding the range of permissible governmental fixing of
prices, the Court, in the Nebbia Case,[190] more recently declared that
prices established for business in general would invite judicial
condemnation only if "arbitrary, discriminatory, or demonstrably
irrelevant to the policy the legislature is free to adopt." The latter
standard of judicial appraisal, as will be subsequently noted,
represents less of a departure from the principle enunciated in the Munn
Case than that which the Court evolved, in the years following 1877, to
measure the validity of State imposed public utility rates, and this
difference in the judicial treatment of prices and rates accordingly
warrants an explanation at the outset. Unlike operators of public
utilities who, in return for the grant of certain exclusive, virtually
monopolistic privileges by the governmental unit enfranchising them,
must assume an obligation to provide continuous service, proprietors of
other businesses are in receipt of no similar special advantages and
accordingly are unrestricted in the exercise of their right to liquidate
and close their establishments. At liberty, therefore, as public
utilities invariably are not, to escape, by dissolution, the
consequences of publicly imposed charges deemed to be oppressive, owners
of ordinary business, presumably for that reason, have thus far been
unable to convince the courts that they too, no less than public
utilities, are in need of that protection which judicial review affords.
Consistently with its initial pronouncement in the Munn Case, that the
reasonableness of compensation allowed under permissible rate regulation
presented a legislative rather than a judicial question, the Court, in
Davidson _v._ New Orleans,[191] also rejected the contention that, by
virtue of the due process clause, businesses, even though subject to
control of their prices or charges, were nevertheless entitled to "just
compensation." Less than a decade was to elapse, however, before the
Court, appalled perhaps by prospective consequences of leaving business
"at the mercy of the majority of the legislature," began to reverse
itself. Thus, in 1886, Chief Justice Waite, in the Railroad Commission
Cases,[192] warned that "this power to regulate is not a power to
destroy; [and] the State cannot do that in law which amounts to a taking
of property for public use without just compensation or without due
process of law"; or, in other words, cannot impose a confiscatory rate.
By treating "due process of law" and "just compensation" as equivalents,
the Court, contrary to its earlier holding in Davidson _v._ New Orleans,
was in effect asserting that the imposition of a rate so low as to
damage or diminish private property ceased to be an exercise of a
State's police power and became one of eminent domain. Nevertheless,
even the added measure of protection afforded by the doctrine of the
Railroad Commission Cases proved inadequate to satisfy public utilities;
for through application of the latter the courts were competent to
intervene only to prevent legislative imposition of a confiscatory rate,
a rate so low as to be productive of a loss and to amount to a taking of
property without just compensation. Nothing less than a judicial
acknowledgment that when the "reasonableness" of legislative rates is
questioned, the courts should finally dispose of the contention was
deemed sufficient by such businesses to afford the relief desired; and
although as late as 1888[193] the Court doubted that it possessed the
requisite power, it finally acceded to the wishes of the utilities in
1890, and, in Chicago, M. & St. P.R. Co. _v._ Minnesota[194] ruled as
follows: "The question of the reasonableness of a rate * * *, involving
as it does the element of reasonableness both as regards the company and
as regards the public, is eminently a question for judicial
investigation, requiring due process of law for its determination. If
the company is deprived of the power of charging rates for the use of
its property, and such deprivation takes place in the absence of an
investigation by judicial machinery, it is deprived of the lawful use of
its property, and thus, in substance and effect, of the property itself,
without due process of law * * *"
Despite a last hour attempt, in Budd _v._ New York,[195] to reconcile
Munn _v._ Illinois with Chicago, M. & St. P.R. Co. _v._ Minnesota by
confining application of the latter decision to cases wherein rates had
been fixed by a commission and denying its pertinence to rates directly
imposed by a legislature, the Court, in Reagan _v._ Farmers' Loan and
Trust Co.,[196] set at rest all lingering doubts as to the scope of
judicial intervention by declaring that, "if a carrier," in the absence
of a legislative rate, "attempted to charge a shipper an unreasonable
sum," the Court, in accordance with common law principles, will pass on
the reasonableness of its rates and has "jurisdiction * * * to award to
the shipper any amount exacted * * * in excess of a reasonable rate;
* * * The province of the courts is not changed, nor the limit of
judicial inquiry altered, because the legislature instead of a carrier
prescribes the rates."[197] Reiterating virtually the same principle in
Smyth _v._ Ames,[198] the Court not only obliterated the distinction
between confiscatory and unreasonable rates, but also contributed the
additional observation that the requirements of due process are not met
unless a court reviews not merely the reasonableness of a rate but also
determines whether the rate permits the utility to earn a fair return on
a fair valuation of its investment.
Limitations on Judicial Review
As to what courts will not do, when reviewing rate orders of a State
commission, the following negative statements of the Supreme Court
appear to have enduring value. As early as 1894, the Court asserted:
"The courts are not authorized to revise or change the body of rates
imposed by a legislature or a commission; they do not determine whether
one rate is preferable to another, or what under all circumstances would
be fair and reasonable as between the carriers and the shippers; they
do not engage in any mere administrative work; * * * [however, there can
be no doubt] of their power and duty to inquire whether a body of rates
* * * is unjust and unreasonable, * * *, and if found so to be, to
restrain its operation."[199] And later, in 1910, although it was
examining the order of a federal rate-making agency, the Court made a
similar observation which appears to be equally applicable to the
judicial review of regulations of State agencies. The courts cannot,
"under the guise of exerting judicial power, usurp merely administrative
functions by setting aside" an order of the commission within the scope
of the power delegated to such commission, upon the ground that such
power was unwisely or inexpediently exercised.[200]
Also inferable from these early holdings, and effective to restrict the
bounds of judicial investigation, is the notion that a distinction can
be made between factual questions which give rise only to controversies
as to the wisdom or expediency of an order issued by a commission and
determinations of fact which bear on a commission's power to act; namely
those questions which are inseparable from the constitutional issue of
confiscation, and that judicial review does not extend to the former.
This distinction is accorded adequate emphasis by the Court in
Louisville & N.R. Co. _v._ Garrett,[201] in which it declared that "the
appropriate question for the courts" is simply whether a "commission,"
in establishing a rate, "acted within the scope of its power" and did
not violate "constitutional rights * * * by imposing confiscatory
requirements" and that a carrier, contesting the rate thus established,
accordingly was not entitled to have a court also pass upon a question
of fact regarding the reasonableness of a higher rate charged by it
prior to the order of the commission. All that need concern a court, it
said, is the fairness of the proceeding whereby the commission
determined that the existing rate was excessive; but not the expediency
or wisdom of the commission's having superseded that rate with a rate
regulation of its own.
Likewise, with a view to diminishing the number of opportunities which
courts may enjoy for invalidating rate regulations of State commissions,
the Supreme Court has placed various obstacles in the path of the
complaining litigant. Thus, not only must a person challenging a rate
assume the burden of proof,[202] but he must present a case of "manifest
constitutional invalidity";[203] and if, notwithstanding his effort, the
question of confiscation remains in doubt, no relief will be
granted.[204] Moreover, even though a public utility, which has
petitioned a commission for relief from allegedly confiscatory rates,
need not await indefinitely a decision by the latter before applying to
a court for equitable relief,[205] the latter ought not to interfere in
advance of any experience of the practical result of such rates.[206]
In the course of time, however, a distinction emerged between ordinary
factual determinations by State commissions and factual determinations
which were found to be inseparable from the legal and constitutional
issue of confiscation. In two older cases arising from proceedings begun
in lower federal courts to enjoin rates, the Court initially adopted the
position that it would not disturb such findings of fact insofar as
these were supported by substantial evidence. Thus, in San Diego Land
and Town Company _v._ National City,[207] the Court declared that: After
a legislative body has fairly and fully investigated and acted, by
fixing what it believes to be reasonable rates, the courts cannot step
in and say its action shall be set aside because the courts, upon
similar investigation, have come to a different conclusion as to the
reasonableness of the rates fixed. "Judicial interference should never
occur unless the case presents, clearly and beyond all doubt, such a
flagrant attack upon the rights of property under the guise of
regulation as to compel the court to say that the rates prescribed will
necessarily have the effect to deny just compensation for private
property taken for the public use." And in a similar later case[208] the
Court expressed even more clearly its reluctance to reexamine factual
determinations of the kind just described. The Court is not bound "to
reexamine and weigh all the evidence, * * *, or to proceed according to
* * * [its] independent opinion as to what are proper rates. It is
enough if * * * [the Court] cannot say that it was impossible for a
fair-minded board to come to the result which was reached."
Moreover, in reviewing orders of the Interstate Commerce Commission, the
Court, at least in earlier years,[209] chose to be guided by
approximately the same standards of appraisal as it had originally
formulated for examining regulations of State commissions; and inasmuch
as the following excerpt from its holding in Interstate Commerce
Commission _v._ Union Pacific R. Co.[210] represents an adequate
summation of the law as it stood prior to 1920, it is set forth below:
"* * * questions of fact may be involved in the determination of
questions of law, so that an order, regular on its face, may be set
aside if it appears that the rate is so low as to be confiscatory * * *;
or if the Commission acted so arbitrarily and unjustly as to fix rates
contrary to evidence, or without evidence to support it; or if the
authority therein involved has been exercised in such an unreasonable
manner as to cause it to be within the elementary rule that the
substance, and not the shadow, determines the validity of the exercise
of the power. * * * In determining these mixed questions of law and
fact, the Court confines itself to the ultimate question as to whether
the Commission acted within its power. It will not consider the
expediency or wisdom of the order, or whether, on like testimony, it
would have made a similar ruling. * * * [The Commission's] conclusion,
of course, is subject to review, but when supported by evidence is
accepted as final; not that its decision, * * *, can be supported by a
mere scintilla of proof--but the courts will not examine the facts
further than to determine whether there was substantial evidence to
sustain the order."
The Ben Avon Case
These standards of review were abruptly rejected by the Court in Ohio
Valley Water Company _v._ Ben Avon Borough,[211] decided in 1920, as
being no longer sufficient to satisfy the requirements of due process.
Unlike previous litigation involving allegedly confiscatory rate orders
of State commissions, which had developed from rulings of lower federal
courts in injunctive proceedings, this case reached the Supreme Court by
way of appeal from a State appellate tribunal;[212] and although the
latter did in fact review the evidence and ascertained that the State
commission's findings of fact were supported by substantial evidence, it
also construed the statute providing for review as denying to State
courts "the power to pass upon the weight of such evidence." Largely on
the strength of this interpretation of the applicable State statute, the
Supreme Court held that when the order of a legislature, or of a
commission, prescribing a schedule of maximum future rates is challenged
as confiscatory, "the State must provide a fair opportunity for
submitting that issue to a judicial tribunal for determination upon its
own independent judgment as to both law and facts; otherwise the order
is void because in conflict with the due process clause, Fourteenth
Amendment."
Without departing from the ruling, previously enunciated in Louisville
& N.R. Co. _v._ Garrett,[213] that the failure of a State to grant a
statutory right of judicial appeal from a commission's regulation is not
violative of due process as long as relief is obtainable by a bill in
equity for injunction, the Court also held that the alternative remedy
of injunction expressly provided by State law did not afford an adequate
opportunity for testing judicially a confiscatory rate order. It
conceded the principle stressed by the dissenting Justices that "where a
State offers a litigant the choice of two methods of judicial review, of
which one is both appropriate and unrestricted, the mere fact that the
other which the litigant elects is limited, does not amount to a denial
of the constitutional right to a judicial review."[214]
History of the Valuation Question