State Activities and Instrumentalities

Today it is apparent that the Tenth Amendment does not shield the States nor their political subdivisions from the impact of the authority affirmatively granted to the Federal Government. It was cited to no avail in Case v. Bowles,[38] where a State officer was enjoined from selling timber on school lands at a price in excess of the maximum prescribed by the Office of Price Administration. When California violated the Federal Safety Appliance Act in the operation of the State Belt Railroad as a common carrier in interstate commerce it was held liable for the statutory penalty.[39] At the suit of the Attorney General of the United States, the Sanitary District of Chicago was enjoined from diverting water from Lake Michigan in excess of a specified rate. On behalf of a unanimous court, Justice Holmes wrote: "This is not a controversy among equals. The United States is asserting its sovereign power to regulate commerce and to control the navigable waters within its jurisdiction. * * * There is no question that this power is superior to that of the States to provide for the welfare or necessities of their inhabitants."[40] Some years earlier, in a suit brought by Kansas to prevent Colorado from using the waters of the Arkansas River for irrigation, the Attorney General of the United States had unsuccessfully advanced the claim that the Federal Government had an inherent legislative authority to deal with the matter. In a petition to intervene in the suit he had taken the position, as summarized by the Supreme Court, that "the National Government * * * has the right to make such legislative provision as in its judgment is needful for the reclamation of all these arid lands and for that purpose to appropriate the accessible waters. * * * All legislative power must be vested in either the state or the National Government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that State; consequently all powers which are national in their scope must be found vested in the Congress of the United States."[41] The petition to intervene was dismissed on the ground that the authority claimed for the Federal Government was incompatible with the Tenth Amendment; but this could hardly happen today.[42] Under its superior power of eminent domain, the United States may condemn land owned by a State even where the taking will interfere with the State's own project for water development and conservation.[43] The rights reserved to the States are not invaded by a statute which requires a reduction in the amount of a federal grant-in-aid of the construction of highways upon failure of a State to remove from office a member of the State Highway Commission found to have violated federal law by participating in a political campaign.[44]

Federal legislation frequently has been challenged as an unconstitutional interference with the prerogative of the States to control the entities they create, but the attack has been successful only once, in Hopkins Federal Savings and Loan Association v. Cleary.[45] There an act of Congress authorizing the conversion of State building and loan associations without State consent was found to contravene the Tenth Amendment. Thirty years earlier, in Northern Securities Co. v. United States,[46] a closely divided Court had ruled that this amendment was no barrier to the application of the Sherman Antitrust Act to prevent one corporation from restraining commerce by means of stock ownership in two competing corporations. It announced the general proposition that: "No State can, by merely creating a corporation, or in any other mode, project its authority into other States, and across the continent, so as to prevent Congress from exerting the power it possesses under the Constitution over interstate and international commerce, or so as to exempt its corporation engaged in interstate commerce from obedience to any rule lawfully established by Congress for such commerce. It cannot be said that any State may give a corporation, created under its laws, authority to restrain interstate or international commerce against the will of the nation as lawfully expressed by Congress. Every corporation created by a State is necessarily subject to the supreme law of the land."[47] Even a charter contract between a State and an intrastate railroad, limiting the rates of the latter, is no barrier to enforcement of an order of the Interstate Commerce Commission requiring an increase in local rates to remove a discrimination against interstate commerce.[48] An order of the Federal Power Commission prescribing the methods of keeping the accounts of an electric company was sustained over the objection that it violated the reserved right of the States under the Tenth Amendment.[49] A similar objection to the levy of a special surtax on any corporation formed or availed of to prevent the imposition of a surtax upon its shareholders was rejected, since the taxing statute did not limit in any way the power of the corporations to declare or withhold dividends as permitted by State law.[50] Likewise, the Court held that the failure to allow a credit against the undistributed profits tax for earnings which could not be distributed under State law did not infringe the reserved power of the State over its corporate offspring.[51]

Notes

[1] United States v. Sprague, 282 U.S. 716, 733 (1931).

[2] II Annals of Congress 1897 (1791).

[3] 4 Wheat. 316 (1819).

[4] Ibid. 372.

[5] Ibid. 406.

[6] 11 Wall. 113 (1871).

[7] Ibid. 124.

[8] Graves v. O'Keefe, 306 U.S. 466 (1939).

[9] 326 U.S. 572 (1946).

[10] Ibid. 589.

[11] Ibid. 584.

[12] Ibid. 595.

[13] United States v. Dewitt, 9 Wall. 41 (1870).

[14] Ibid. 44.

[15] 207 U.S. 463 (1908). See also Keller v. United States, 213 U.S. 138 (1909).

[16] 247 U.S. 251 (1918).

[17] 312 U.S. 100, 116, 117 (1941).

[18] Bailey v. Drexel Furniture Co., 259 U.S. 20, 36, 38 (1922).

[19] Hill v. Wallace, 259 U.S. 44 (1922). See also Trusler v. Crooks, 269 U.S. 475 (1926).

[20] Carter v. Carter Coal Co., 298 U.S. 238 (1936).

[21] United States v. Butler, 297 U.S. 1 (1936).

[22] 295 U.S. 495 (1935).

[23] Ibid. 529.

[24] Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937).

[25] National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

[26] 312 U.S. 100 (1941). See also United States v. Carolene Products Co., 304 U.S. 144, 147 (1938); Case v. Bowles, 327 U.S. 92, 101 (1946).

[27] 312 U.S. 100, 114, 123, 124 (1941). See also Fernandez v. Wiener, 326 U.S. 340, 362 (1945).

[28] 251 U.S. 146 (1919).

[29] Ibid. 156.

[30] Champion v. Ames, 188 U.S. 321 (1903).

[31] Hoke v. United States, 227 U.S. 308 (1913).

[32] Brooks v. United States, 267 U.S. 432 (1925).

[33] Thornton v. United States, 271 U.S. 414 (1926).

[34] United States v. Ferger, 250 U.S. 199 (1919).

[35] Kentucky Whip & Collar Co. v. Illinois C.R. Co., 299 U.S. 334 (1937).

[36] Everhard's Breweries v. Day, 265 U.S. 545 (1924).

[37] 296 U.S. 287 (1935). The Civil Rights Act of 1875, which made it a crime for one person to deprive another of equal accommodations at inns, theaters or public conveyances was found to exceed the powers conferred on Congress by the Thirteenth and Fourteenth Amendments, and hence to be an unlawful invasion of the powers reserved to the States by the Tenth—Civil Rights Cases, 109 U.S. 3, 15 (1883).

[38] 327 U.S. 92, 102 (1946).

[39] United States v. California, 297 U.S. 175 (1936).

[40] Sanitary District of Chicago v. United States, 266 U.S. 405, 425, 426 (1925).

[41] Kansas v. Colorado, 206 U.S. 46, 87, 89 (1907).

[42] See United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940).

[43] Oklahoma v. Atkinson Co., 313 U.S. 508, 534 (1941).

[44] Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 142-144 (1947).

[45] 296 U.S. 315 (1935).

[46] 193 U.S. 197 (1904).

[47] Ibid. 345, 346.

[48] New York v. United States, 257 U.S. 591 (1922).

[49] Northwestern Electric Co. v. Federal Power Commission, 321 U.S. 119 (1944). See also Federal Power Commission v. East Ohio Gas Company, 338 U.S. 404 (1950).

[50] Helvering v. National Grocery Co., 304 U.S. 282 (1938).

[51] Helvering v. Northwest Steel Mills, 311 U.S. 46 (1940).



AMENDMENT 11

SUITS AGAINST STATES

Page Purpose and early interpretation 929 Expansion of state immunity 930 Suits against state officials: two categories 930 Mandamus proceedings 932 Early limitation on injunction proceedings 932 Injunction proceedings today: Ex parte Young 933 Tort action against state officials 934 Suits to recover taxes 935 Consent of State to be sued 935 Waiver of immunity 936

SUITS AGAINST STATES

Amendment 11

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Purpose and Early Interpretation

The action of the Supreme Court in accepting jurisdiction of a suit against a State by a citizen of another State in 1793, in Chisholm v. Georgia[1] provoked such angry reactions in Georgia and such anxieties in other States that at the first meeting of Congress after this decision what became the Eleventh Amendment was proposed by an overwhelming vote and ratified with "vehement speed."[2] The earliest decisions interpretative of the amendment were three by Chief Justice Marshall. In Cohens v. Virginia,[3] speaking for the Court, he held that the prosecution of a writ of error to review a judgment of a State court, alleged to be in violation of the Constitution or laws of the United States, "does not commence or prosecute a suit against the State," but continues one commenced by the State. The contrary holding would have virtually repealed the 25th Section of the Judiciary Act of 1789 (see p. 554), and brought something like anarchy in its wake. In Osborn v. Bank of the United States,[4] decided three years later, the Court laid down two rules, one of which has survived and the other of which was soon abandoned. The latter was the holding that a suit is not one against a State unless the State is a party to the record.[5] This rule the Court was forced to repudiate seven years later in Governor of Georgia v. Madrazo,[6] in which it was conceded that the suit had been brought against the governor solely in his official capacity and with the design of forcing him to exercise his official powers. It is now a well-settled rule that in determining whether a suit is prosecuted against a State "the Court will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit."[7] The other, more successful rule was that a State official possesses no official capacity when acting illegally and hence can derive no protection from an unconstitutional statute of a State.[8]

Expansion of State Immunity

Subsequent cases giving the amendment a restrictive effect are those holding that counties and municipalities are suable in the federal courts;[9] and that government corporations of the State are not immune when suable under the law which created them.[10] Meantime other cases have expanded the prohibitions of the amendment to include suits brought against a State by its own citizens,[11] by a foreign state,[12] by a federally chartered corporation,[13] or by a State as an agent of its citizens to collect debts owed them by another State.[14] These rulings are based on the premise expressed in Hans v. Louisiana[15] that the amendment "actually reversed the decision" in Chisholm v. Georgia and, as Chief Justice Hughes indicated in Monaco v. Mississippi,[16] had the effect of prohibiting any suit against a State without its consent except when brought by the United States[17] or another State.

Suits Against State Officials: Two Categories

Most of the cases involving the Eleventh Amendment and those creating the greatest difficulties are suits brought against State officials. Such suits are governed by the same rules and principles as pertain to the immunity of the United States itself from suits,[18] with the result that the rules of governmental immunity from suit generally are grounded on decisions arising under both article III and the Eleventh Amendment without distinction as to whether a suit is against the United States or a State.[19] The line is not always easy to draw, nor are the cases always strictly consistent. They do yield, however, to the formulation of certain general rules. Thus, suits brought against State officials acting either in excess of their statutory authority[20] or in pursuance of an unconstitutional statute[21] are suits against the officer in his individual capacity and therefore are not prohibited by the Eleventh Amendment; and suits against an officer for the commission of a common law tort alleged to be justified by a statute or administrative order of the State belong to the same category.[22] On the other hand, suits against the officers of a State involving what is conceded to be State property or suits asking for relief which clearly call for the exercise of official authority cannot be sustained.[23]

Mandamus Proceedings

Thus mandamus proceedings which seek "affirmative official action" on the part of State officials as "the performance of an obligation which belongs to the State in its political capacity"[24] are uniformly regarded as suits against the State. This rule is well illustrated by Louisiana ex rel. Elliott v. Jumel[25] where a holder of Louisiana State bonds sought to compel the State treasurer to apply a sinking fund that had been created under an earlier constitution for the payment of the bonds to such purpose after a new constitution had abolished this provision for retiring the bonds. The proceeding was held to be a suit against the State because: "The relief asked will require the officers against whom the process is issued to act contrary to the positive orders of the supreme political power of the State, whose creatures they are, and to which they are ultimately responsible in law for what they do. They must use the public money in the treasury and under their official control in one way, when the supreme power has directed them to use it in another, and they must raise more money by taxation when the same power has declared that it shall not be done."[26] However, mandamus proceedings to compel a State official to perform a plain or ministerial duty which admits of no discretion are not suits against the State since the official is regarded as acting in his individual capacity in failing to act according to law.[27]

Early Limitation on Injunction Proceedings

In spite of a dictum by Justice Bradley in the McComb Case that the writs of mandamus and injunction are somewhat correlative to each other in suits against State officials for illegal actions,[28] injunctions against State officials to restrain the enforcement of an unconstitutional statute or action in excess of statutory authority are more readily obtainable. They constitute in fact the single largest class of cases involving the issue of State immunity. Until Reagan v. Farmers' Loan and Trust Company[29] the Court maintained a distinction between the duty imposed upon an official by the general laws of the State and the duty imposed by a specific unconstitutional statute and held that whereas an injunction would not lie to restrain a State official from enforcing an act alleged to be unconstitutional in pursuance of the general duties of his office, it would lie to restrain him from performing special duties vested in him by an unconstitutional statute.[30] The leading cases assertive of this distinction are Ex parte Ayers and Fitts v. McGhee, decided respectively in 1887 and 1899.[31]

Injunction Proceedings Today: Ex parte Young

However, the distinction between injunction suits to restrain an official from pursuing his general duties under the law and those to restrain the performance of special duties under an unconstitutional statute had been largely lost even before Fitts v. McGhee, in Reagan v. Farmers' Loan and Trust Company[32] and Smyth v. Ames,[33] where injunctions issued by the lower federal courts to restrain the enforcement of railroad rate regulations were sustained even though the officials against whom the suits were brought were acting under general law. What remained of the distinction as a limitation upon suits against State officials was dispelled by Ex parte Young,[34] which not only sustained an injunction restraining State officials from exercising their discretionary duties but also upheld the authority of the lower court to enjoin the enforcement of the statute prior to a determination of its unconstitutionality. While Ex parte Ayers and Fitts v. McGhee[35] were not overruled, the inevitable effect of the Young Case was to abrogate the rule that a suit in equity against a State official to enjoin discretionary action is a suit against the State, and to convert the injunction into a device to test the validity of State legislation in the federal courts prior to its interpretation in the State courts and prior to any opportunity for State officials to put the act into operation.[36]

But the earlier rule still crops up at times. Thus as recently as 1937, Ex parte Ayers[37] was applied to the interpretation of the Federal Interpleader Act,[38] so as to prevent taxpayers from enjoining tax officials from collecting death taxes arising from the competing claims of two States as being the last domicile of a decedent.[39] On the other hand, the Eleventh Amendment was held not to be infringed by joinder of a State court judge and receiver in an interpleader proceeding in which the State had no interest and neither the judge nor the receiver was enjoined by the final decree.[40]

Tort Actions Against State Officials

In tort actions against State officials the rule of United States v. Lee[41] has been substantially incorporated into the Eleventh Amendment. In Tindal v. Wesley[42] the Lee Case was held to permit a suit by claimants to real property in South Carolina which they had purchased from the State sinking fund commission but which had been retaken by the State because the purchaser insisted on paying for the property with revenue bond scrip issued by the State. In other cases the Court had held that the immunity of a State from suit does not extend to actions against State officials for damages arising out of willful and negligent disregard of State laws.[43]

Suits to Recover Taxes

Recent decisions, however, have rendered suits against State officials to recover taxes increasingly difficult to maintain. Although the Court long ago held that the sovereign immunity of the State prevented a suit to recover money in the general treasury,[44] it also held that a suit would lie against a revenue officer to recover tax moneys illegally collected and still in his possession.[45] Beginning, however, with Great Northern Life Insurance Co. v. Read[46] in 1944 the Court has held that this kind of suit cannot be maintained unless the State expressly consents to suits in the federal courts. In this case the State statute provided for the payment of taxes under protest and for suits afterwards against State tax collection officials for the recovery of taxes illegally collected. The act also provided for the segregation by the collector of taxes paid under protest. The Read Case has been followed in two more recent cases[47] involving a similar state of facts, with the result that the rule once permitting such suits to recover taxes from a segregated fund has been distinguished away.

Consent of State to be Sued

Although dicta in some cases suggested that once a State consented generally to be sued in a court of competent jurisdiction,[48] suits could be maintained against it in the federal courts, later decisions involving statutory provisions for the payment of taxes under protest followed by a suit in a court of competent jurisdiction to recover do not authorize suits in the federal courts. These rulings are based on the assumption that when the court is dealing "with the sovereign exemption from judicial interference in the vital field of financial administration a clear declaration of the State's intention to submit its fiscal problems to other courts than those of its own creation must be found."[49] Long before these decisions it had been settled that a State could confine to its own courts suits against it to recover taxes.[50] Thus the questions involved in the cases laying down the above rule concerned only the lack of an express consent to suit in the federal courts.

Waiver of Immunity

The immunity of a State from suit is a privilege which it may waive at pleasure by voluntary submission to suit,[51] as distinguished from appearing in a similar suit to defend its officials,[52] and by general law specifically consenting to suit in the federal courts. Such consent must be clear and specific and consent to suit in its own courts does not imply a waiver of immunity in the federal courts.[53] It follows, therefore, that in consenting to be sued, the States, like the National Government, may attach such conditions to suit as they deem fit.

Notes

[1] 2 Dall. 419 (1793).

[2] Justice Frankfurter dissenting in Larson v. Domestic & Foreign Corp., 337 U.S. 682, 708 (1949).

[3] 6 Wheat. 264, 411-412 (1821).

[4] 9 Wheat. 738 (1824).

[5] Ibid. 850-858.

[6] 1 Pet. 110 (1828).

[7] Ex parte Ayers, 123 U.S. 443, 487 (1887).

[8] Osborn v. Bank of the United States, 9 Wheat. at 858, 859, 868.

[9] Lincoln County v. Luning, 133 U.S. 529 (1890).

[10] Hopkins v. Clemson Agricultural College, 221 U.S. 636 (1911). See also Bank of the United States v. Planters' Bank of Georgia, 9 Wheat. 904 (1824), where a State bank was held liable to suit although the State owned a portion of its stock, and Briscoe v. Bank of Kentucky, 11 Pet. 257 (1837), and Bank of Kentucky v. Wister, 2 Pet. 318 (1829), where the State bank was held liable to suit even though the State owned all of the stock. Compare, however, Murray v. Wilson Distilling Co., 213 U.S. 151 (1909), which held that a State in engaging in the retail liquor business does not surrender its immunity to suit for transaction of a nongovernmental nature. Here the State conducted the business directly rather than through the medium of a corporation.

[11] Hans v. Louisiana, 134 U.S. 1 (1890); Fitts v. McGhee, 172 U.S. 516, 524 (1899); Duhne v. New Jersey, 251 U.S. 311, 313 (1920); Ex parte New York, 256 U.S. 490 (1921).

[12] Monaco v. Mississippi, 292 U.S. 313, 329 (1934).

[13] Smith v. Reeves, 178 U.S. 436 (1900).

[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]