Fourteenth Amendment--Rights Guaranteed:
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[[Page 1559]]
FOURTEENTH AMENDMENT
__________
RIGHTS GUARANTEED
PRIVILEGES AND IMMUNITIES OF CITIZENSHIP,
DUE PROCESS AND EQUAL PROTECTION
__________
CONTENTS
Page
Section 1. Rights Guaranteed.............................. 1565
Citizens of the United States............................. 1565
Privileges and Immunities................................. 1568
Due Process of Law........................................ 1572
The Development of Substantive Due Process........ 1572
``Persons'' Defined....................... 1578
Police Power Defined and Limited.......... 1579
``Liberty''............................... 1581
Liberty of Contract............................... 1581
Regulatory Labor Laws Generally........... 1581
Laws Regulating Hours of Labor............ 1586
Laws Regulating Labor in Mines............ 1586
Laws Prohibiting Employment of Children in
Hazardous Occupations................. 1587
Laws Regulating Payment of Wages.......... 1587
Minimum Wage Laws......................... 1587
Workers' Compensation Laws................ 1588
Collective Bargaining..................... 1591
Regulation of Business Enterprises: Rates,
Charges, and Conditions of Service............ 1594
``Business Affected With a Public
Interest''............................ 1594
Nebbia v. New York........................ 1596
Judicial Review of Publicly Determined Rates and
Charges....................................... 1597
Development............................... 1597
Limitations on Judicial Review............ 1600
The Ben Avon Case......................... 1602
History of the Valuation Question......... 1603
Regulation of Public Utilities (Other Than Rates). 1607
In General................................ 1607
Compulsory Expenditures: Grade Crossings,
and the Like.......................... 1608
Compellable Services...................... 1610
Safety Regulations Applicable to Railroads 1612
Statutory Liabilities and Penalties
Applicable to Railroads............... 1613
Regulation of Corporations, Business, Professions,
and Trades.................................... 1614
Corporations.............................. 1614
Business in General....................... 1615
Laws Prohibiting Trusts, Discrimination,
Restraint of Trade.................... 1615
Laws Preventing Fraud in Sale of Goods and
Securities............................ 1616
Banking, Wage Assignments and Garnishment. 1618
Insurance................................. 1619
Miscellaneous Businesses and Professions.. 1622
Protection of State Resources..................... 1624
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Oil and Gas............................... 1624
Protection of Property and Agricultural
Crops................................. 1625
Water..................................... 1626
Fish and Game............................. 1627
Ownership of Real Property: Limitations, Rights... 1628
Zoning and Similar Actions................ 1628
Estates, Succession, Abandoned Property... 1630
Health, Safety, and Morals........................ 1632
Safety Regulations........................ 1632
Sanitation................................ 1633
Food, Drugs, Milk......................... 1633
Intoxicating Liquor....................... 1634
Regulation of Motor Vehicles and Carriers. 1634
Protecting Morality....................... 1636
Vested Rights, Remedial Rights, Political
Candidacy..................................... 1636
Control of Local Units of Government.............. 1637
Taxing Power...................................... 1637
Generally................................. 1637
Public Purpose............................ 1638
Other Considerations Affecting Validity:
Excessive Burden; Ratio of Amount Of
Benefit Received...................... 1638
Estate, Gift and Inheritance Taxes........ 1639
Income Taxes.............................. 1640
Franchise Taxes........................... 1640
Severance Taxes........................... 1640
Real Property Taxes....................... 1641
Jurisdiction to Tax............................... 1642
Sales/Use Taxes........................... 1643
Land...................................... 1643
Tangible Personalty....................... 1643
Intangible Personalty..................... 1646
Transfer (Inheritance, Estate, Gift) Taxes 1650
Corporate Privilege Taxes................. 1654
Individual Income Taxes................... 1655
Corporate Income Taxes: Foreign
Corporations.......................... 1656
Insurance Company Taxes................... 1657
Procedure in Taxation............................. 1659
Generally................................. 1659
Notice and Hearing in Relation to Taxes... 1659
Notice and Hearing in Relation to
Assessments........................... 1660
Collection of Taxes....................... 1662
Sufficiency and Manner of Giving Notice... 1664
Sufficiency of Remedy..................... 1665
Laches.................................... 1665
Eminent Domain.................................... 1666
Substantive Due Process and Noneconomic Liberty... 1666
Abortion.................................. 1669
Privacy: Its Constitutional Dimensions.... 1679
Family Relationships...................... 1688
Liberty Interests of Retarded and Mentally
Ill: Commitment and Treatment......... 1690
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``Right to Die''.......................... 1692
Procedural Due Process: Civil............................. 1693
Some General Criteria............................. 1693
Ancient Use and Uniformity................ 1693
Equality.................................. 1694
Due Process, Judicial Process, and
Separation of Powers.................. 1694
Power of the States to Regulate Procedure......... 1695
Generally................................. 1695
Commencement of Actions................... 1696
Pleas in Abatement........................ 1696
Defenses.................................. 1697
Amendments and Continuances............... 1697
Costs, Damages, and Penalties............. 1698
Statutes of Limitation.................... 1699
Evidence and Presumptions................. 1701
Jury Trials............................... 1704
Appeals................................... 1704
Jurisdiction...................................... 1705
Generally................................. 1705
In Personam Proceedings Against
Individuals........................... 1707
Suability of Foreign Corporations......... 1710
Actions in Rem: Proceedings Against Land.. 1716
Actions in Rem: Attachment Proceedings.... 1718
Actions in Rem: Estates, Trusts,
Corporations.......................... 1720
Notice: Service of Process................ 1722
The Procedure Which Is Due Process................ 1723
The Interests Protected: Entitlements and
Positivist Recognition................ 1723
Proceedings in Which Procedural Due
Process Must Be Observed.............. 1732
When Is Process Due....................... 1735
The Requirements of Due Process........... 1740
Procedural Due Process: Criminal.......................... 1745
Generally......................................... 1745
The Elements of Due Process....................... 1747
Clarity in Criminal Statutes: The Void-
for-Vagueness Doctrine................ 1747
Other Aspects of Statutory Notice......... 1749
Entrapment................................ 1750
Criminal Identification Process........... 1752
Initiation of the Prosecution............. 1753
Fair Trial................................ 1753
Guilty Pleas.............................. 1757
Prosecutorial Misconduct.................. 1758
Proof, Burden of Proof, and Presumptions.. 1761
Sentencing................................ 1765
The Problem of the Incompetent or Insane
Defendant or Convict.................. 1769
Corrective Process: Appeals and Other
Remedies.............................. 1770
Rights of Prisoners....................... 1772
Probation and Parole...................... 1776
The Problem of the Juvenile Offender...... 1780
The Problem of Civil Commitment........... 1783
Equal Protection of the Laws.............................. 1786
Scope and Application..................................... 1786
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State Action...................................... 1786
``Persons''....................................... 1802
``Within Its Jurisdiction''....................... 1803
Equal Protection: Judging Classifications by Law.......... 1804
Traditional Standard: Restrained Review........... 1805
The New Standards: Active Review.................. 1809
Testing Facially Neutral Classifications Which Impact on
Minorities............................................ 1815
Traditional Equal Protection: Economic Regulation and
Related Exercises of the Police Powers........................ 1821
Taxation.................................................. 1821
Classification for Purpose of Taxation............ 1821
Foreign Corporations and Nonresidents............. 1824
Income Taxes...................................... 1825
Inheritance Taxes................................. 1826
Motor Vehicle Taxes............................... 1826
Property Taxes.................................... 1827
Special Assessment................................ 1828
Police Power Regulation................................... 1829
Classification.................................... 1829
Other Business and Employment Relations................... 1834
Labor Relations................................... 1834
Monopolies and Unfair Trade Practices............. 1835
Administrative Discretion......................... 1835
Social Welfare.................................... 1836
Punishment of Crime............................... 1838
Equal Protection and Race................................. 1839
Overview.................................................. 1839
Education................................................. 1840
Development and Application of ``Separate But
Equal''....................................... 1840
Brown v. Board of Education....................... 1842
Brown's Aftermath................................. 1843
Implementation of School Desegregation............ 1845
Northern Schools: Inter- and Intradistrict
Desegregation................................. 1847
Efforts to Curb Busing and Other Desegregation
Remedies...................................... 1852
Termination of Court Supervision.................. 1853
Juries.................................................... 1854
Capital Punishment........................................ 1857
Housing................................................... 1858
Other Areas of Discrimination............................. 1859
Transportation.................................... 1859
Public Facilities................................. 1859
Marriage.......................................... 1860
Judicial System................................... 1860
Public Designation................................ 1861
Public Accommodations............................. 1861
Elections......................................... 1861
Permissible Remedial Utilization of Racial Classifications 1861
The New Equal Protection.................................. 1869
Classifications Meriting Close Scrutiny................... 1869
Alienage and Nationality.......................... 1869
Sex............................................... 1875
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Illegitimacy...................................... 1886
Fundamental Interests: The Political Process.............. 1892
Voter Qualifications.............................. 1893
Access to the Ballot.............................. 1897
Apportionment and Districting..................... 1902
Weighing of Votes................................. 1911
The Right to Travel....................................... 1911
Durational Residency Requirements................. 1911
Marriage and Familial Relations........................... 1914
Poverty and Fundamental Interests: The Intersection of Due
Process and Equal Protection.......................... 1916
Generally......................................... 1916
Criminal Procedure................................ 1918
The Criminal Sentence............................. 1920
Voting............................................ 1921
Access to Courts.................................. 1922
Educational Opportunity........................... 1923
Abortion.......................................... 1925
Section 2. Apportionment of Representation................ 1926
Sections 3 and 4. Disqualification and Public Debt........ 1928
Section 5. Enforcement.................................... 1928
Generally................................................. 1928
State Action.............................................. 1929
Congressional Definition of Fourteenth Amendment Rights... 1933
[[Page 1565]]
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
Section 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States
and 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.
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED:
CITIZENS OF THE UNITED STATES
In the Dred Scott Case,\1\ Chief Justice Taney for the Court
ruled that United States citizenship was enjoyed by two classes of
individuals: (1) white persons born in the United States as descendents
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 continued, to confer state citizenship upon anyone in
their midst, but they could not make the recipient of such status a
citizen of the United States. The ``Negro,'' or ``African race,''
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.\2\
Congress, first in Sec. 1 of the Civil Rights Act of 1866 \3\ and then
in the first sentence
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of Sec. 1 of the Fourteenth Amendment,\4\ set aside the Dred Scott
holding in a sentence ``declaratory of existing rights, and affirmative
of existing law. . . .''\5\
\1\Scott v. Sandford, 60 U.S. (19 How.) 393, 404-06, 417-18,
419-20 (1857).
\2\The controversy, political as well as constitutional, which
this case stirred and still stirs, is exemplified and analyzed in the
material collected in S. Kutler, The Dred Scott Decision: Law or
Politics? (1967).
\3\``That all persons born in the United States and not subject
to any foreign power, excluding Indians not taxed, are hereby declared
to be citizens of the United States; and such citizens, of every race
and color, without regard to any previous condition of slavery or
involuntary servitude . . . shall have the same right[s]. . . .'' Ch.
31, 14 Stat. 27.
\4\The proposed amendment as it passed the House contained no
such provision, and it was decided in the Senate to include language
like that finally adopted. Cong. Globe, 39th Cong., 1st Sess. 2560,
2768-69, 2869 (1866). The sponsor of the language said: ``This amendment
which I have offered is simply declaratory of what I regard as the law
of the land already, that every person born within the limits of the
United States, and subject to their jurisdiction, is . . . a citizen of
the United States.'' Id. at 2890. The legislative history is discussed
at some length in Afroyim v. Rusk, 387 U.S. 253, 282-86 (1967) (Justice
Harlan dissenting).
\5\United States v. Wong Kim Ark, 169 U.S. 649, 688 (1898).
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While clearly establishing a national rule on national
citizenship and settling a controversy of long standing with regard to
the derivation of national citizenship, the Fourteenth Amendment did not
obliterate the distinction between national and state citizenship, but
rather preserved it.\6\ The Court has accorded the first sentence of
Sec. 1 a construction in accordance with the congressional intentions,
holding that a child born in the United States of Chinese parents who
themselves were ineligible to be naturalized is nevertheless a citizen
of the United States entitled to all the rights and privileges of
citizenship.\7\ Congress' intent in including the qualifying phrase
``and subject to the jurisdiction thereof,'' was apparently to exclude
from the reach of the language children born of diplomatic
representatives of a foreign state and children born of alien enemies in
hostile occupation, both recognized exceptions to the common-law rule of
acquired citizenship by birth,\8\ as well as children of members of
Indian tribes subject to tribal laws.\9\ The lower courts have generally
held that the citizenship of the parents determines the citizenship of
children born on vessels in United States territorial waters or on the
high seas.\10\
\6\Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 74 (1873).
\7\United States v. Wong Kim Ark, 169 U.S. 649 (1898).
\8\Id. at 682.
\9\Id. at 680-82; Elk v. Wilkins, 112 U.S. 94, 99 (1884).
\10\United States v. Gordon, 25 Fed. Cas. 1364 (C.C.S.D.N.Y.
1861) (No. 15,231); In re Look Tin Sing, 21 F. 905 (C.C.Cal. 1884); Lam
Mow v. Nagle, 24 F.2d 316 (9th Cir. 1928).
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In Afroyim v. Rusk,\11\ a divided Court extended the force of
this first sentence beyond prior holdings, ruling that it withdrew
[[Page 1567]]
from the Government of the United States the power to expatriate United
States citizens against their will for any reason. ``[T]he Amendment can
most reasonably be read as defining a citizenship which a citizen keeps
unless he voluntarily relinquishes it. Once acquired, this Fourteenth
Amendment citizenship was not to be shifted, canceled, or diluted at the
will of the Federal Government, the States, or any other government
unit. It is true that the chief interest of the people in giving
permanence and security to citizenship in the Fourteenth Amendment was
the desire to protect Negroes. . . . This undeniable purpose of the
Fourteenth Amendment to make citizenship of Negroes permanent and secure
would be frustrated by holding that the Government can rob a citizen of
his citizenship without his consent by simply proceeding to act under an
implied general power to regulate foreign affairs or some other power
generally granted.''\12\ In a subsequent decision, however, the Court
held that persons who were statutorily naturalized by being born abroad
of at least one American parent could not claim the protection of the
first sentence of Sec. 1 and that Congress could therefore impose a
reasonable and non-arbitrary condition subsequent upon their continued
retention of United States citizenship.\13\ Between these two decisions
there is a tension which should call forth further litigation efforts to
explore the meaning of the citizenship sentence of the Fourteenth
Amendment.
\11\387 U.S. 253 (1967). Though the Court upheld the involuntary
expatriation of a woman citizen of the United States during her marriage
to a foreign citizen in Mackenzie v. Hare, 239 U.S. 299 (1915), the
subject first received extended judicial treatment in Perez v. Brownell,
356 U.S. 44 (1958), in which by a five-to-four decision the Court upheld
a statute denaturalizing a native-born citizen for having voted in a
foreign election. For the Court, Justice Frankfurter reasoned that
Congress' power to regulate foreign affairs carried with it the
authority to sever the relationship of this country with one of its
citizens to avoid national implication in acts of that citizen which
might embarrass relations with a foreign nation. Id. at 60-62. Three of
the dissenters denied that Congress had any power to denaturalize. See
discussion supra pp. 272-76. In the years before Afroyim, a series of
decisions had curbed congressional power.
\12\Afroyim v. Rusk, 387 U.S. 253, 262-63 (1967). Four
dissenters, Justices Harlan, Clark, Stewart, and White, controverted the
Court's reliance on the history and meaning of the Fourteenth Amendment
and reasserted Justice Frankfurter's previous reasoning in Perez. Id. at
268.
\13\Rogers v. Bellei, 401 U.S. 815 (1971). This, too, was a
five-to-four decision, Justices Blackmun, Harlan, Stewart, and White,
and Chief Justice Burger in the majority, and Justices Black, Douglas,
Brennan, and Marshall dissenting.
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Citizens of the United States within the meaning of this
Amendment must be natural and not artificial persons; a corporate body
is not a citizen of the United States.\14\
\14\Insurance Co. v. New Orleans, 13 Fed. Cas. 67 (C.C.D.La.
1870). Not being citizens of the United States, corporations accordingly
have been declared unable ``to claim the protection of that clause of
the Fourteenth Amendment which secures the privileges and immunities of
citizens of the United States against abridgment or impairment by the
law of a State.'' Orient Ins. Co. v. Daggs, 172 U.S. 557, 561 (1869).
This conclusion was in harmony with the earlier holding in Paul v.
Virginia, 75 U.S. (8 Wall.) 168 (1869), to the effect that corporations
were not within the scope of the privileges and immunities clause of
state citizenship set out in Article IV, Sec. 2. See also Selover, Bates
& Co. v. Walsh, 226 U.S. 112, 126 (1912); Berea College v. Kentucky, 211
U.S. 45 (1908); Liberty Warehouse Co. v. Tobacco Growers, 276 U.S. 71,
89 (1928); Grosjean v. American Press Co., 297 U.S. 233, 244 (1936).
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[[Page 1568]]
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED:
PRIVILEGES AND IMMUNITIES
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 issued within five years after its ratification. In the
Slaughter-House Cases,\15\ 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.''
\15\83 U.S. (16 Wall.) 36, 71, 77-79 (1873).
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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; 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.''
Privileges and immunities of state citizenship
[[Page 1569]]
had been ``left to the state governments for security and protection''
and had not been placed by this clause ``under the special care of the
Federal Government.'' The only privileges which the Fourteenth Amendment
protected against state encroachment were declared to be those ``which
owe their existence to the Federal Government, its National character,
its Constitution, or its laws.''\16\ These privileges, however, had been
available to United States citizens and protected from state
interference by operation of federal supremacy even prior to the
adoption of the Fourteenth Amendment. The Slaughter-House Cases,
therefore, reduced the privileges and immunities clause to a superfluous
reiteration of a prohibition already operative against the states.
\16\Id. at 78-79.
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Although the Court has expressed a reluctance to attempt a
definitive enumeration of those privileges and immunities of United
States citizens which 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.''\17\ Among those which it
then identified were the right of access to the seat of Government and
to the seaports, subtreasuries, land officers, and courts of justice in
the several States, the right to demand protection of the Federal
Government on the high seas or abroad, the right of assembly, the
privilege of habeas corpus, the right to use the navigable waters of the
United States, and rights secured by treaty. In Twining v. New
Jersey,\18\ the Court recognized ``among the rights and privileges'' of
national citizenship the right to pass freely from State to State,\19\
the right to petition Congress for a redress of grievances,\20\ the
right to vote for national officers,\21\ the
[[Page 1570]]
right to enter public lands,\22\ the right to be protected against
violence while in the lawful custody of a United States marshal,\23\ and
the right to inform the United States authorities of violation of its
laws.\24\ Earlier, in a decision not mentioned in Twining, the Court had
also acknowledged that the carrying on of interstate commerce is ``a
right which every citizen of the United States is entitled to
exercise.''\25\
\17\Id. at 79.
\18\211 U.S. 78, 97 (1908).
\19\Citing Crandall v. Nevada, 73 U.S. (65 Wall.) 35 (1868). It
was observed in United States v. Wheeler, 254 U.S. 281, 299 (1920), that
the statute at issue in Crandall was actually held to burden directly
the performance by the United States of its governmental functions. Cf.
Passenger Cases, 48 U.S. (7 How.) 282, 491-92 (1849) (Chief Justice
Taney dissenting). Four concurring Justices in Edwards v. California,
314 U.S. 160, 177, 181 (1941), would have grounded a right of interstate
travel on the privileges and immunities clause. More recently, the Court
declined to ascribe a source but was content to assert the right to be
protected. United States v. Guest, 383 U.S. 745, 758 (1966); Shapiro v.
Thompson, 394 U.S. 618, 629-31 (1969). Three Justices ascribed the
source to this clause in Oregon v. Mitchell, 400 U.S. 112, 285-87 (1970)
(Justices Stewart and Blackmun and Chief Justice Burger, concurring in
part and dissenting in part).
\20\Citing United States v. Cruikshank, 92 U.S. 542 (1876).
\21\Citing Ex parte Yarbrough, 110 U.S. 651 (1884); Wiley v.
Sinkler, 179 U.S. 58 (1900). Note Justice Douglas' reliance on this
clause in Oregon v. Mitchell, 400 U.S. 112, 149 (1970) (concurring in
part and dissenting in part).
\22\Citing United States v. Waddell, 112 U.S. 76 (1884).
\23\Citing Logan v. United States, 144 U.S. 263 (1892).
\24\Citing In re Quarles and Butler, 158 U.S. 532 (1895).
\25\Crutcher v. Kentucky, 141 U.S. 47, 57 (1891).
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In modern times, the Court has continued the minor role accorded
to the clause, only occasionally manifesting a disposition to enlarge
the restraint which it imposes upon state action. Colgate v. Harvey,\26\
which was overruled five years later,\27\ 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. In
Hague v. CIO,\28\ two and perhaps three justices thought 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, and in
Edwards v. California\29\ four Justices were prepared to rely on the
clause.\30\ In Oyama v. California,\31\ in a single sentence the Court
agreed with the contention of a native-born youth that a state Alien
Land Law, applied to work a forfeiture of property purchased in his name
with funds advanced by his parent, a Japanese alien ineligible for
citizenship and precluded from owning land, deprived him ``of his
privileges as an American citizen.'' The right to acquire and retain
property had previously not been set
[[Page 1571]]
forth in any of the enumerations as one of the privileges protected
against state abridgment, although a federal statute enacted prior to
the proposal and ratification of the Fourteenth Amendment did confer on
all citizens the same rights to purchase and hold real property as white
citizens enjoyed.\32\
\26\296 U.S. 404 (1935).
\27\Madden v. Kentucky, 309 U.S. 83, 93 (1940).
\28\307 U.S. 496, 510-18 (1939) (Justices Roberts and Black;
Chief Justice Hughes may or may not have concurred on this point. Id. at
532). Justices Stone and Reed preferred to base the decision on the due
process clause. Id. at 518.
\29\314 U.S. 160, 177-83 (1941).
\30\See also Oregon v. Mitchell, 400 U.S. 112, 149 (1970)
(Justice Douglas); id. at 285-87 (Justices Stewart and Blackmun and
Chief Justice Burger).
\31\332 U.S. 633, 640 (1948).
\32\Civil Rights Act of 1866, ch. 31, 14 Stat. 27, now 42 U.S.C.
Sec. 1982, as amended.
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In other respects, however, claims based on this clause have
been rejected.\33\
\33\E.g., Holden v. Hardy, 169 U.S. 366, 380 (1898) (statute
limiting hours of labor in mines); Williams v. Fears, 179 U.S. 270, 274
(1900) (statute taxing the business of hiring persons to labor outside
the State); Wilmington Mining Co. v. Fulton, 205 U.S. 60, 73 (1907)
(statute requiring employment of only licensed mine managers and
examiners and imposing liability on the mine owner for failure to
furnish a reasonably safe place for workmen); Heim v. McCall, 239 U.S.
175 (1915); Crane v. New York, 239 U.S. 195 (1915) (statute restricting
employment on state public works to citizens of the United States, with
a preference to citizens of the State); Missouri Pacific Ry. v. Castle,
224 U.S. 541 (1912) (statute making railroads liable to employees for
injuries caused by negligence of fellow servants and abolishing the
defense of contributory negligence); Western Union Tel. Co. v. Milling
Co., 218 U.S. 406 (1910) (statute prohibiting a stipulation against
liability for negligence in delivery of interstate telegraph messages);
Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 139 (1873); In re
Lockwood, 154 U.S. 116 (1894) (refusal of state court to license a woman
to practice law); Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879) (law
taxing a debt owed a resident citizen by a resident of another State and
secured by mortgage of land in the debtor's State); Bartemeyer v. Iowa,
85 U.S. (18 Wall.) 129 (1874); Mugler v. Kansas, 123 U.S. 623 (1887);
Crowley v. Christensen, 137 U.S. 86, 91 (1890); Giozza v. Tiernan, 148
U.S. 657 (1893) (statutes regulating the manufacture and sale of
intoxicating liquors); In re Kemmler, 136 U.S. 436 (1890) (statute
regulating the method of capital punishment); Minor v. Happersett, 88
U.S. (21 Wall.) 162 (1875) (statute regulating the franchise to male
citizens); Pope v. Williams, 193 U.S. 621 (1904) (statute requiring
persons coming into a State to make a declaration of intention to become
citizens and residents thereof before being permitted to register as
voters); Ferry v. Spokane, P. & S. Ry., 258 U.S. 314 (1922) (statute
restricting dower, in case wife at time of husband's death is a
nonresident, to lands of which he died seized); Walker v. Sauvinet, 92
U.S. 90 (1876) (statute restricting right to jury trial in civil suits
at common law); Presser v. Illinois, 116 U.S. 252, 267 (1886) (statute
restricting drilling or parading in any city by any body of men without
license of the Governor); Maxwell v. Dow, 176 U.S. 581, 596, 597-98
(1900) (provision for prosecution upon information, and for a jury
(except in capital cases) of eight persons); New York ex rel. Bryant v.
Zimmerman, 278 U.S. 63, 71 (1928) (statute penalizing the becoming or
remaining a member of any oathbound association (other than benevolent
orders, and the like) with knowledge that the association has failed to
file its constitution and membership lists); Palko v. Connecticut, 302
U.S. 319 (1937) (statute allowing a State to appeal in criminal cases
for errors of law and to retry the accused); Breedlove v. Suttles, 302
U.S. 277 (1937) (statute making the payment of poll taxes a prerequisite
to the right to vote); Madden v. Kentucky, 309 U.S. 83, 92-93 (1940),
(overruling Colgate v. Harvey, 296 U.S. 404, 430 (1935)) (statute
whereby deposits in banks outside the State are taxed at 50 cents per
$100); Snowden v. Hughes, 321 U.S. 1 (1944) (the right to become a
candidate for state office is a privilege of state citizenship, not
national citizenship); MacDougall v. Green, 335 U.S. 281 (1948)
(Illinois Election Code requirement that a petition to form and nominate
candidates for a new political party be signed by at least 200 voters
from each of at least 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); New York v. O'Neill, 359 U.S. 1
(1959) (Uniform Reciprocal State Law to secure attendance of witnesses
from within or without a State in criminal proceedings); James v.
Valtierra, 402 U.S. 137 (1971) (a provision in a state constitution to
the effect that low-rent housing projects could not be developed,
constructed, or acquired by any state governmental body without the
affirmative vote of a majority of those citizens participating in a
community referendum).
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[[Page 1572]]
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED:
DUE PROCESS OF LAW
The Development of Substantive Due Process
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,''\34\ 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,''\35\ 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
the conspicuous exception of the Dred Scott decision,\36\ only in the
narrower sense that a legislature must provide ``due process for the
enforcement of law.''
\34\Hibben v. Smith, 191 U.S. 310, 325 (1903).
\35\Carroll v. Greenwich Ins. Co., 199 U.S. 401, 410 (1905). See
also French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).
\36\Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857), is the
exception.
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Thus, in the Slaughter-House Cases,\37\ in which the clause was
invoked by a group of butchers challenging 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 forms of
expression in the constitution 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.'' Four years later, in
Munn v. Illinois,\38\ the Court again refused to interpret the due
process clause as invalidating
[[Page 1573]]
state legislation regulating the rates charged for the transportation
and warehousing of grain. Rejecting 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.''
\37\83 U.S. (16 Wall.) 36, 80-81 (1873).
\38\94 U.S. 113, 134 (1877).
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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,\39\
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
[[Page 1574]]
those which are not, no more useful construction could be furnished by
this or any other court to any part of the fundamental of law.
\39\96 U.S. 97, 103-04 (1878).
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``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. . . .''
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. 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,\40\
declared that ``[a]rbitrary 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.'' 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 was raised.
\40\110 U.S. 516, 528, 532, 536 (1884).
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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 was the
increasing number of cases seeking protection of property rights against
the remedial social legislation States were enacting in the wake of
industrial expansion. At the same time, the added emphasis on the due
process clause 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
[[Page 1575]]
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 to this consummation, however, the Slaughter-House
Cases and Munn v. Illinois had to be overruled at least in part, 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,\41\ namely, that it is
solely a power to prevent injury, was in effect ratified by the Court
itself. This occurred in Mugler v. Kansas,\42\ 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,\43\ had been transformed
tentatively into constitutionally enforceable limitations upon
government.\44\ The consequence was that the States in exercising their
police powers 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 fundamentally 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.\45\
\41\94 U.S. 113, 141-48 (1877).
\42\123 U.S. 623, 661 (1887).
\43\83 U.S. (16 Wall.) 36, 113-14, 116, 122 (1873).
\44\Loan Association v. Topeka, 87 U.S. (20 Wall.) 655, 662
(1875). ``There are . . . rights in every free government beyond the
control of the State. . . . There are limitations on [governmental
power] which grow out of the essential nature of all free governments.
Implied reservations of individual rights, without which the social
compact could not exist. . . .''
\45\``Rights to life, liberty, and the pursuit of happiness are
equivalent to the rights of life, liberty, and property. These are
fundamental rights which can only be taken away by due process of law,
and which can only be interfered with, or the enjoyment of which can
only be modified, by lawful regulations necessary or proper for the
mutual good of all. . . . This right to choose one's calling is an
essential part of that liberty which it is the object of government to
protect; and a calling, when chosen, is a man's property right. . . . A
law which prohibits a large class of citizens from adopting a lawful
employment, or from following a lawful employment previously adopted,
does deprive them of liberty as well as property, without due process of
law.'' Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 116, 122 (1873)
(Justice Bradley dissenting).
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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 concepts currently accepted theories of
laissez faire economics, reinforced by the doctrine of Social Darwinism
as elaborated by Herbert Spencer, to the end that ``liberty,'' in
[[Page 1576]]
particular, became synonymous with governmental hands-off in the field
of private economic relations. In Budd v. New York,\46\ Justice Brewer
in 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.\47\ The first
step was taken with opposite intention. This occurred in Munn v.
Illinois,\48\ 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.'' Ten years later,
in Mugler v. Kansas,\49\ 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
consideration which had induced the legislature to enact the statute in
the first place.\50\ However, in Powell v. Pennsylvania,\51\ decided the
following year, the Court, 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
sustained the measure, 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.''
\46\143 U.S. 517, 551 (1892).
\47\See Fletcher v. Peck, 10. U.S. (6 Cr.) 87, 128 (1810).
\48\94 U.S. 113, 123, 182 (1877).
\49\123 U.S. 623 (1887).
\50\Id. at 662. ``We cannot shut out of view the fact, within
the knowledge of all, that the public health, the public morals, and the
public safety, may be endangered by the general use of intoxicating
drinks; nor the fact . . . that . . . pauperism, and crime . . . are, in
some degree, at least, traceable to this evil.''
\51\127 U.S. 678, 685 (1888).
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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;
[[Page 1577]]
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 State 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.
In 1934 the Court in Nebbia v. New York\52\ discarded this
approach to economic legislation, and has not since returned to it. The
modern approach was evidenced in a 1955 decision reversing a lower
court's judgment invalidating a state statutory scheme regulating the
sale of eyeglasses to the advantage of ophthalmologists and optometrists
in private professional practice and adversely to opticians and to those
employed by or using space in business establishments. ``The day is gone
when this Court uses the Due Process Clause of the Fourteenth Amendment
to strike down state laws, regulatory of business and industrial
conditions, because they may be unwise, improvident, or out of harmony
with a particular school of thought. . . . We emphasize again what Chief
Justice Waite said in Munn v. Illinois, 94 U.S. 113, 134, `For
protection against abuses by legislatures the people must resort to the
polls, not to the courts.'''\53\ Yet the Court went on to assess the
reasons which might have justified the legislature in prescribing the
regulation at issue, leaving open the possibility that some regulation
might be found unreasonable.\54\ More recent decisions, however, have
limited inquiry to whether the legislation is arbitrary or irrational,
and have not addressed ``reasonableness.''\55\
\52\291 U.S. 502 (1934).
\53\Williamson v. Lee Optical Co., 348 U.S. 483, 488 (1955).
\54\Id. at 487, 491.
\55\The Court has pronounced a strict ``hands-off'' standard of
judicial review, whether of congressional or state legislative efforts
to structure and accommodate the burdens and benefits of economic life.
Such legislation is to be ``accorded the traditional presumption of
constitutionality generally accorded economic regulations'' and is to be
``upheld absent proof of arbitrariness or irrationality on the part of
Congress.'' That the accommodation among interests which the legislative
branch has struck ``may have profound and far-reaching consequences
. . . provides all the more reason for this Court to defer to the
congressional judgment unless it is demonstrably arbitrary or
irrational.'' Duke Power Co. v. Carolina Environmental Study Group, 438
U.S. 59, 83-84 (1978). See also Usery v. Turner Elkhorn Mining Co., 428
U.S. 1, 14-20 (1976); Hodel v. Indiana, 452 U.S. 314, 333 (1981); New
Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96, 106-08 (1978); Exxon
Corp. v. Governor of Maryland, 437 U.S. 117, 124-25 (1978); Brotherhood
of Locomotive Firemen v. Chicago, R.I. & P. R.R., 393 U.S. 129, 143
(1968); Ferguson v. Skrupa, 372 U.S. 726, 730, 733 (1963).
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[[Page 1578]]
``Persons'' Defined.--Notwithstanding the historical controversy
that has been waged concerning whether the framers of the Fourteenth
Amendment intended the word ``person'' to mean only natural persons, or
whether the word was substituted for the word ``citizen'' with a view to
protecting corporations from oppressive state legislation,\56\ the
Supreme Court, as early as the Granger Cases,\57\ decided in 1877,
upheld on the merits various state laws without raising any question as
to the status of railway corporation plaintiffs to advance due process
contentions. There is no doubt that a corporation may not be deprived of
its property without due process of law,\58\ and although prior
decisions had held that the ``liberty'' guaranteed by the Fourteenth
Amendment is the liberty of natural, not artificial, persons,\59\
nevertheless a newspaper corporation was sustained, in 1936, in its
objection that a state law deprived it of liberty of press.\60\ As to
the natural persons protected by the due process clause, these include
all human beings regardless of race, color, or citizenship.\61\
\56\See Graham, The ``Conspiracy Theory'' of the Fourteenth
Amendment, 47 Yale L. J. 371 (1938).
\57\Munn v. Illinois, 94 U.S. 113 (1877). In a case arising
under the Fifth Amendment, decided almost at the same time, the Court
explicitly declared the United States ``equally with the States . . .
are prohibited from depriving persons or corporations of property
without due process of law.'' Sinking Fund Cases, 99 U.S. 700, 718-19
(1879).
\58\Smyth v. Ames, 169 U.S. 466, 522, 526 (1898); Kentucky Co.
v. Paramount Exch., 262 U.S. 544, 550 (1923); Liggett Co. v. Baldridge,
278 U.S. 105 (1928).
\59\Northwestern Life Ins. Co. v. Riggs, 203 U.S. 243, 255
(1906); Western Turf Ass'n v. Greenberg, 204 U.S. 359, 363 (1907);
Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). Earlier, in
Northern Securities Co. v. United States, 193 U.S. 197, 362 (1904), a
case interpreting the federal antitrust law, Justice Brewer, in a
concurring opinion, had declared that ``a corporation . . . is not
endowed with the inalienable rights of a natural person.''
\60\Grosjean v. American Press Co., 297 U.S. 233, 244 (1936)
(``a corporation is a `person' within the meaning of the equal
protection and due process of law clauses''). In First Nat'l Bank of
Boston v. Bellotti, 435 U.S. 765 (1978), faced with the validity of
state restraints upon expression by corporations, the Court did not
determine that corporations have First Amendment liberty rights--and
other constitutional rights--but decided instead that expression was
protected, irrespective of the speaker, because of the interests of the
listeners. See id. at 778 n.14 (reserving question). But see id. at 809,
822 (Justices White and Rehnquist dissenting) (corporations as creatures
of the state have the rights state gives them).
\61\Yick Wo v. Hopkins, 118 U.S. 356 (1886); Terrace v.
Thompson, 263 U.S. 197, 216 (1923). See Hellenic Lines v. Rhodetis, 398
U.S. 306, 309 (1970).
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Ordinarily, the mere interest of an official as such, in
contrast to an actual injury sustained by a natural or artificial person
through invasion of personal or property rights, has not been
[[Page 1579]]
deemed adequate to enable him to invoke the protection of the Fourteenth
Amendment against state action.\62\ Similarly, municipal corporations
are viewed as having no standing ``to invoke the provisions of the
Fourteenth Amendment in opposition to the will of their creator,'' the
State.\63\ However, state officers are acknowledged to have an interest,
despite their not having sustained any ``private damage,'' in resisting
an ``endeavor to prevent the enforcement of laws in relation to which
they have official duties,'' and, accordingly, may apply to federal
courts for the ``review of decisions of state courts declaring state
statutes which [they] seek to enforce to be repugnant to the''
Fourteenth Amendment.\64\
\62\Pennie v. Reis, 132 U.S. 464 (1889); Taylor and Marshall v.
Beckham (No. 1), 178 U.S. 548 (1900); Tyler v. Judges of Court of
Registration, 179 U.S. 405, 410 (1900); Straus v. Foxworth, 231 U.S. 162
(1913); Columbus & G. Ry. v. Miller, 283 U.S. 96 (1931).
\63\City of Pawhuska v. Pawhuska Oil Co., 250 U.S. 394 (1919);
City of Trenton v. New Jersey, 262 U.S. 182 (1923); Williams v. Mayor of
Baltimore, 289 U.S. 36 (1933). But see Madison School Dist. v. WERC, 429
U.S. 167, 175 n.7 (1976) (reserving question whether municipal
corporation as an employer has a First Amendment right assertable
against State).
\64\Coleman v. Miller, 307 U.S. 433, 441, 442, 443, 445 (1939);
Boynton v. Hutchinson Gas Co., 291 U.S. 656 (1934); South Carolina Hwy.
Dept. v. Barnwell Bros., 303 U.S. 177 (1938).
The converse is not true, however, and the interest of a state
official in vindicating the Constitution gives him no legal standing to
attack the constitutionality of a state statute in order to avoid
compliance with it. Smith v. Indiana, 191 U.S. 138 (1903); Braxton
County Court v. West Virginia, 208 U.S. 192 (1908); Marshall v. Dye, 231
U.S. 250 (1913); Stewart v. Kansas City, 239 U.S. 14 (1915). See also
Coleman v. Miller, 307 U.S. 433, 437-46 (1939).
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Police Power Defined and Limited.--The police power of a State
today embraces regulations designed to promote the public convenience or
the general prosperity as well as those to promote public safety,
health, and morals, and is not confined to the suppression of what is
offensive, disorderly, or unsanitary, but extends to what is for the
greatest welfare of the state.\65\
\65\Long ago Chief Justice Marshall described the police power
as ``that immense mass of legislation, which embraces every thing within
the territory of a State, not surrendered to the general government.''
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 202 (1824). See California
Reduction Co. v. Sanitary Works, 199 U.S. 306, 318 (1905); Chicago B. &
Q. Ry. v. Drainage Comm'rs, 200 U.S. 561, 592 (1906); Bacon v. Walker,
204 U.S. 311 (1907); Eubank v. Richmond, 226 U.S. 137 (1912);
Schmidinger v. Chicago, 226 U.S. 578 (1913); Sligh v. Kirkwood, 237 U.S.
52, 58-59 (1915); Nebbia v. New York, 291 U.S. 502 (1934); Nashville, C.
& St. L. Ry. v. Walters, 294 U.S. 405 (1935). See also Penn Central
Transp. Co. v. City of New York, 438 U.S. 104 (1978) (police power
encompasses preservation of historic landmarks; land-use restrictions
may be enacted to enhance the quality of life by preserving the
character and aesthetic features of city); City of New Orleans v. Dukes,
427 U.S. 297 (1976); Young v. American Mini Theatres, 427 U.S. 50
(1976).
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Because the police power is the least limitable of the exercises
of government, such limitations as are applicable are not readily
definable. These limitations can be determined, therefore, only
[[Page 1580]]
through appropriate regard to the subject matter of the exercise of that
power.\66\ ``It is settled [however] that neither the `contract' clause
nor the `due process' clause had the effect of overriding the power of
the state to establish all regulations that are reasonably necessary to
secure the health, safety, good order, comfort, or general welfare of
the community; that this power can neither be abdicated nor bargained
away, and is inalienable even by express grant; and that all contract
and property [or other vested] rights are held subject to its fair
exercise.''\67\ Insofar as the police power is utilized by a State, the
means employed to effect its exercise can be neither arbitrary nor
oppressive but must bear a real and substantial relation to an end which
is public, specifically, the public health, public safety, or public
morals, or some other phase of the general welfare.\68\
\66\Hudson Water Co. v. McCarter, 209 U.S. 349 (1908); Eubank v.
Richmond, 226 U.S. 137, 142 (1912); Erie R.R. v. Williams, 233 U.S. 685,
699 (1914); Sligh v. Kirkwood, 237 U.S. 52, 58-59 (1915); Hadacheck v.
Sebastian, 239 U.S. 394 (1915); Hall v. Geiger-Jones Co., 242 U.S. 539
(1917); Panhandle Eastern Pipeline Co. v. Highway Comm'n, 294 U.S. 613,
622 (1935).
\67\Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548, 558
(1914).
\68\Liggett Co. v. Baldridge, 278 U.S. 105, 111-12 (1928);
Treigle v. Acme Homestead Ass'n, 297 U.S. 189, 197 (1936).
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A general rule often invoked is that if a police power
regulation goes too far, it will be recognized as a taking of property
for which compensation must be paid.\69\ Yet where mutual advantage is a
sufficient compensation, an ulterior public advantage may justify a
comparatively insignificant taking of private property for what in its
immediate purpose seems to be a private use.\70\ On the other hand, mere
``cost and inconvenience (different words, probably, for the same thing)
would have to be very great before they could become an element in the
consideration of the right of a state to exert its reserved power or its
police power.''\71\ Moreover, it is elementary that enforcement of
uncompensated obedience to a regulation passed in the legitimate
exertion of the police power is not a taking without due process of
law.\72\ Similarly, initial compliance with a regulation which is valid
when adopted occasions no forfeiture of the right to protest when that
regulation subsequently loses its validity by becoming confiscatory in
its operation.\73\
\69\Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); Welch
v. Swasey, 214 U.S. 91, 107 (1909). See also Penn Central Transp. Co. v.
City of New York, 438 U.S. 104 (1978); Agins v. City of Tiburon, 447
U.S. 255 (1980). See supra, pp. 1382-95.
\70\Noble State Bank v. Haskell, 219 U.S. 104, 110 (1911).
\71\Erie R.R. v. Williams, 233 U.S. 685, 700 (1914).
\72\New Orleans Public Service v. New Orleans, 281 U.S. 682, 687
(1930).
\73\Abie State Bank v. Bryan, 282 U.S. 765, 776 (1931).
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[[Page 1581]]
``Liberty''.--The ``liberty'' guaranteed by the due process
clause has been variously defined by the Court, as will be seen
hereinafter. In general, in the early years, it meant almost exclusively
``liberty of contract,'' but with the demise of liberty of contract came
a general broadening of ``liberty'' to include personal, political and
social rights and privileges.\74\ Nonetheless, the Court is generally
chary of expanding the concept absent statutorily recognized rights.\75\
\74\See the tentative effort in Hampton v. Mow Sun Wong, 426
U.S. 88, 102 & n.23 (1976), apparently to expand upon the concept of
``liberty'' within the meaning of the Fifth Amendment's due process
clause and necessarily therefore the Fourteenth's.
\75\See the substantial confinement of the concept in Meachum v.
Fano, 427 U.S. 215 (1976); and Montanye v. Haymes, 427 U.S. 236 (1976),
in which the Court applied to its determination of what is a liberty
interest the ``entitlement'' doctrine developed in property cases, in
which the interest is made to depend upon state recognition of the
interest through positive law, an approach contrary to previous due
process-liberty analysis. Cf. Morrissey v. Brewer, 408 U.S. 471, 482
(1972). For more recent cases, see DeShaney v. Winnebago County Social
Servs. Dep't, 489 U.S. 189 (1989) (no Due Process violation for failure
of state to protect an abused child from his parent, even though abuse
had been detected by social service agency); Collins v. City of Harker
Heights, 112 S. Ct. 1061 (1992) (failure of city to warn its employees
about workplace hazards does not violate due process; the due process
clause does not impose a duty on the city to provide employees with a
safe working environment).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Liberty of Contract
Regulatory Labor Laws Generally.--Liberty of contract, a concept
originally advanced by Justices Bradley and Field in the Slaughter-House
Cases,\76\ was elevated to the status of accepted doctrine in Allgeyer
v. Louisiana.\77\ Applied repeatedly in subsequent cases as a restraint
on federal and state power, freedom of contract was also alluded to as a
property right, as is evident in the language of the Court in Coppage v.
Kansas.\78\ ``Included in the right of personal liberty and the right of
private property--partaking of the nature of each--is the right to make
contracts for the acquisition of property. Chief among such contracts is
that of personal employment, by which labor and other services are
exchanged for money or other forms of property. If this right be
[[Page 1582]]
struck down or arbitrarily interfered with, there is a substantial
impairment of liberty in the long-established constitutional sense.''
\76\83 U.S. (16 Wall.) 36 (1873).
\77\165 U.S. 578, 589 (1897). ``The liberty mentioned in that
[Fourteenth] Amendment means not only the right of the citizen to be
free from the mere physical restraint of his person, as by
incarceration, but the term is deemed to embrace the right of the
citizen to be free in the enjoyment of all his faculties, to be free to
use them in all lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; to pursue any livelihood or avocation,
and for that purpose to enter into all contracts which may be proper,
necessary and essential to his carrying out to a successful conclusion
the purposes above mentioned.''
\78\236 U.S. 1, 14 (1915).
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By a process of reasoning that was almost completely discarded
during the Depression, the Court was nevertheless able, prior thereto,
to sustain state ameliorative legislation by acknowledging that freedom
of contract was ``a qualified and not an absolute right. . . . Liberty
implies the absence of arbitrary restraint, not immunity from reasonable
regulations and prohibitions imposed in the interest of the community.
. . . In dealing with the relation of the employer and employed, the
legislature has necessarily a wide field of discretion in order that
there may be suitable protection of health and safety, and that peace
and good order may be promoted through regulations designed to insure
wholesome conditions of work and freedom from oppression.''\79\
\79\Chicago, B. & Q. R.R. v. McGuire, 219 U.S. 549, 567, 570
(1911). See also Wolff Packing Co. v. Industrial Court, 262 U.S. 522,
534 (1923).
---------------------------------------------------------------------------
While continuing to acknowledge in abstract terms that freedom
of contract is not absolute, the Court in fact was committed to the
principle that freedom of contract is the general rule and that
legislative authority to abridge it 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\80\ and Lochner v. New York,\81\ decisions which bear the same
relation to each other as Powell v. Pennsylvania\82\ and Mugler v.
Kansas.\83\
\80\169 U.S. 366 (1898).
\81\198 U.S. 45 (1905).
\82\127 U.S. 678 (1888).
\83\123 U.S. 623 (1887).
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In Holden v. Hardy,\84\ 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.''
\84\169 U.S. 366, 398 (1898).
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Seven years later, however, a radically altered Court was
predisposed in favor of the doctrine of judicial notice, and applied
that
[[Page 1583]]
doctrine to conclude in Lochner v. New York\85\ 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 for their means of livelihood. Denying that in so
holding 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?''\86\
\85\198 U.S. 45 (1905).
\86\Id. at 58-59.
---------------------------------------------------------------------------
Two dissenting opinions were filed in the case. Justice Harlan,
pointing to 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, concluded that
the very existence of such evidence left the reasonableness of the
measure open to discussion and that the latter fact of itself put the
statute within legislative discretion. ``The responsibility therefor
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. . . . [T]he public interests 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.''\87\
\87\Id. at 71, 74 (quoting Atkin v. Kansas, 191 U.S. 207, 223
(1903)).
---------------------------------------------------------------------------
The second dissenting opinion, written by Justice Holmes, has
received the greater measure of attention because the views expressed
therein were a forecast of the line of reasoning to be fol
[[Page 1584]]
lowed by the Court some decades later. ``This case is decided upon an
economic theory which a large part of the country does not entertain. If
it were a question whether I agreed with that theory, I should desire to
study it further and long before making up my mind. But I do not
conceive that to be my duty, because I strongly believe that my
agreement or disagreement has nothing to do with the right of a majority
to embody their opinions in law. It is settled by various decisions of
this court that state constitutions and state laws may regulate life in
many ways which we as legislators might think as injudicious or if you
like as tyrannical as this, and which equally with this interfere with
the liberty to contract. . . . The Fourteenth Amendment does not enact
Mr. Herbert Spencer's Social Statics. . . . But a constitution is not
intended to embody a particular economic theory, whether of paternalism
and the organic relations of the citizen to the state or of laissez
faire. It is made for people of fundamentally differing views, and the
accident of our finding certain opinions natural and familiar or novel
and even shocking ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the Constitution. . . . I
think that the word liberty in the Fourteenth Amendment is perverted
when it is held to prevent the natural outcome of a dominant opinion,
unless it can be said that a rational and fair man necessarily would
admit that the statute proposed would infringe fundamental principles as
they have been understood by the traditions of our people and our
law.''\88\
\88\198 U.S. at 75-76 (1905).
---------------------------------------------------------------------------
In part, Justice Holmes' criticism of his colleagues was unfair,
for his ``rational and fair man'' could not function in a vacuum, and,
in appraising the constitutionality of state legislation, could no more
avoid being guided by his preferences or ``economic predilections'' than
were the Justices constituting the majority. Insofar as he accepted the
broader conception of due process of law in preference to the historical
concept thereof as pertaining to the enforcement rather than the making
of law, and did not affirmatively advocate a return to the maxim that
the possibility of abuse is no argument against possession of a power,
Justice Holmes, whether consciously or not, was thus prepared to
observe, along with his opponents in the majority, the very practices
which were deemed to have rendered inevitable the assumption by the
Court of a ``perpetual censorship'' over state legislation. The basic
distinction, therefore, between the positions taken by Justice Peckham
for the majority and Justice Holmes, for what was then the minority, was
the
[[Page 1585]]
espousal of the conflicting doctrines of judicial notice by the former
and of presumed validity by the latter.
Although the Holmes dissent bore fruit in time in the form of
the Bunting v. Oregon\89\ and Muller v. Oregon\90\ decisions modifying
Lochner, the doctrinal approach employed in the earlier of these by
Justice Brewer continued to prevail until the Depression in the 1930's.
In view of the shift in the burden of proof which application of the
principle of judicial notice entailed, counsel defending the
constitutionality of social legislation developed the practice of
submitting voluminous factual briefs replete with medical or other
scientific data intended to establish beyond question a substantial
relationship between the challenged statute and public health, safety,
or morals. Whenever the Court was disposed to uphold measures pertaining
to industrial relations, such as laws limiting hours of work,\91\ it
generally intimated that the facts thus submitted by way of
justification had been authenticated sufficiently for it to take
judicial cognizance thereof. On the other hand, whenever it chose to
invalidate comparable legislation, such as enactments establishing
minimum wage for women and children,\92\ it brushed aside such
supporting data, proclaimed its inability to perceive any reasonable
connection between the statute and the legitimate objectives of health
or safety, and condemned the statute as an arbitrary interference with
freedom of contract.
\89\243 U.S. 426 (1917).
\90\208 U.S. 412 (1908).
\91\Id.
\92\Adkins v. Children's Hospital, 261 U.S. 525 (1923); Stettler
v. O'Hara, 243 U.S. 629 (1917); Morehead v. New York ex rel. Tipaldo,
298 U.S. 587 (1936).
---------------------------------------------------------------------------
During the great Depression, however, the laissez faire tenet of
self-help was supplanted by the belief that it is peculiarly the duty of
government to help those who are unable to help themselves. To sustain
remedial legislation enacted in conformity with the latter philosophy,
the Court had to revise extensively its previously formulated concepts
of ``liberty'' under the due process clause. Not only did the Court take
judicial notice of the demands for relief arising from the Depression
when it overturned prior holdings and sustained minimum wage
legislation,\93\ but, in upholding state legislation designed to protect
workers in their efforts to organize and bargain collectively, the Court
had to reconsider the scope of an
[[Page 1586]]
employer's liberty of contract and recognize a correlative liberty of
employees that state legislatures could protect.
\93\West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). Thus
the National Labor Relations Act was declared not to ``interfere with
the normal exercise of the right of the employer to select its employees
or to discharge them.'' However, restraint of the employer for the
purpose of preventing an unjust interference with the correlative right
of his employees to organize was declared not to be arbitrary. NLRB v.
Jones & Laughlin Steel Corp., 301 U.S. 1, 44, 45-46 (1937).
---------------------------------------------------------------------------
To the extent that it acknowledged that liberty of the
individual may be infringed by the coercive conduct of other individuals
no less than by the arbitrary action of public officials, the Court in
effect transformed the due process clause into a source of encouragement
to state legislatures to intervene affirmatively to mitigate the effects
of such coercion. By such modification of its views, liberty, in the
constitutional sense of freedom resulting from restraint upon
government, was replaced by the civil liberty which an individual enjoys
by virtue of the restraints which government, in his behalf, imposes
upon his neighbors.
Laws Regulating Hours of Labor.--Even during the Lochner era,
the due process clause was construed as permitting enactment by the
States of maximum hours laws applicable to women workers\94\ and to
workers in specified lines of work thought to be physically demanding or
otherwise worthy of special protection.\95\ Because of the almost
plenary powers of the State and its municipal subdivisions to determine
the conditions for work on public projects, statutes limiting the hours
of labor on public works were also upheld at a relatively early
date.\96\
\94\Miller v. Wilson, 236 U.S. 373 (1915) (statute limiting work
to 8 hours/day, 48 hours/week); Bosley v. McLaughlin, 236 U.S. 385
(1915) (same restrictions for women working as pharmacists or student
nurses). See also Muller v. Oregon, 208 U.S. 412 (1908) (10 hours/day as
applied to work in laundries); Riley v. Massachusetts, 232 U.S. 671
(1914) (violation of lunch hour required to be posted).
\95\See, e.g., Holden v. Hardy, 169 U.S. 366 (1898) (statute
limiting the hours of labor in mines and smelters to eight hours per
day); Bunting v. Oregon, 243 U.S. 426 (1917) (statute limiting to ten
hours per day, with the possibility of 3 hours per day of overtime at
time-and-a-half pay, work in any mill, factory, or manufacturing
establishment).
\96\Atkin v. Kansas, 191 U.S. 207 (1903).
---------------------------------------------------------------------------
Laws Regulating Labor in Mines.--The regulation of mines being
patently within the police power, States during this period were also
upheld in the enactment of laws providing for appointment of mining
inspectors and requiring payment of their fees by mine owners,\97\
compelling employment of only licensed mine managers and mine examiners,
and imposing upon mine owners liability for the willful failure of their
manager and examiner to furnish a reasonably safe place for workmen.\98\
Other similar regulations which have been sustained have included laws
requiring that underground passageways meet or exceed a minimum
width,\99\ that boundary pillars be installed between adjoining coal
properties as
[[Page 1587]]
a protection against flood in case of abandonment,\100\ and that
washhouses be provided for employees.\101\
\97\St. Louis Consol. Coal Co. v. Illinois, 185 U.S. 203 (1902).
\98\Wilmington Mining Co. v. Fulton, 205 U.S. 60 (1907).
\99\Barrett v. Indiana, 229 U.S. 26 (1913).
\100\Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531 (1914).
\101\Booth v. Indiana, 237 U.S. 391 (1915).
---------------------------------------------------------------------------
Law Prohibiting Employment of Children in Hazardous
Occupations.--To make effective its prohibition against the employment
of persons under 16 years of age in dangerous occupations, a State has
been held to be competent to require employers at their peril to
ascertain whether their employees are in fact below that age.\102\
\102\Sturges & Burn v. Beauchamp, 231 U.S. 320 (1913).
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Laws Regulating Payment of Wages.--No unconstitutional
deprivation of liberty of contract was deemed to have been occasioned by
a statute requiring redemption in cash of store orders or other
evidences of indebtedness issued by employers in payment of wages.\103\
Nor was any constitutional defect discernible in laws requiring
railroads to pay their employees semimonthly\104\ and to pay them on the
day of discharge, without abatement or reduction, any funds due
them.\105\ Similarly, freedom of contract was held not to be infringed
by an act requiring that miners, whose compensation was fixed on the
basis of weight, be paid according to coal in the mine car rather than
at a certain price per ton for coal screened after it has been brought
to the surface, and conditioning such payment on the presence of no
greater percentage of dirt or impurities than that ascertained as
unavoidable by the State Industrial Commission.\106\
\103\Knoxville Iron Co. v. Harbison, 183 U.S. 13 (1901); Dayton
Coal and Iron Co. v. Barton, 183 U.S. 23 (1901); Keokee Coke Co. v.
Taylor, 234 U.S. 224 (1914).
\104\Erie R.R. v. Williams, 233 U.S. 685 (1914).
\105\St. Louis, I. Mt. & S.P. Ry. v. Paul, 173 U.S. 404 (1899).
\106\Rail Coal Co. v. Ohio Industrial Comm'n, 236 U.S. 338
(1915). See also McLean v. Arkansas, 211 U.S. 539 (1909).
---------------------------------------------------------------------------
Minimum Wage Laws.--The theory that a law prescribing minimum
wages for women and children violates due process by impairing freedom
of contract was finally discarded in 1937.\107\ The modern theory of the
Court, particularly when labor is the beneficiary of legislation, was
stated by Justice Douglas for a majority of the Court, in the following
terms: ``Our recent decisions make plain that we do not sit as a
superlegislature to weigh the wisdom of legislation nor to decide
whether the policy which it expresses offends the public welfare. The
legislative power has limits. . . . But the state legislatures have
constitutional authority to experiment with new techniques; they are
entitled to their own standard
[[Page 1588]]
of the public welfare; they may within extremely broad limits control
practices in the business-labor field, so long as specific
constitutional prohibitions are not violated and so long as conflicts
with valid and controlling federal laws are avoided.''\108\ Proceeding
from this basis the Court sustained a Missouri statute giving employees
the right to absent themselves four hours on election day, between the
opening and closing of the polls, without deduction of wages for their
absence.
\107\West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)
(overruling Adkins v. Children's Hospital, 261 U.S. 525 (1923), a Fifth
Amendment case); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587
(1936).
\108\Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423
(1952).
---------------------------------------------------------------------------
It was admitted that this was a minimum wage law, but, said
Justice Douglas, ``the protection of the right of suffrage under our
scheme of things is basic and fundamental,'' and hence within the police
power. ``Of course,'' the Justice added, ``many forms of regulation
reduce the net return of the enterprise. . . . Most regulations of
business necessarily impose financial burdens on the enterprise for
which no compensation is paid. Those are part of the costs of our
civilization. Extreme cases are conjured up where an employer is
required to pay wages for a period that has no relation to the
legitimate end. Those cases can await decision as and when they arise.
The present law has no such infirmity. It is designed to eliminate any
penalty for exercising the right of suffrage and to remove a practical
obstacle to getting out the vote. The public welfare is a broad and
inclusive concept. The moral, social, economic, and physical well-being
of the community is one part of it; the political well-being, another.
The police power which is adequate to fix the financial burden for one
is adequate for the other. The judgment of the legislature that time out
for voting should cost the employee nothing may be a debatable one. It
is indeed conceded by the opposition to be such. But if our recent cases
mean anything, they leave debatable issues as respects business,
economic, and social affairs to legislative decision. We could strike
down this law only if we returned to the philosophy of the Lochner,
Coppage, and Adkins cases.''\109\
\109\Id. at 424-25. See also Dean v. Gadsden Times Pub. Co., 412
U.S. 543 (1973) (sustaining statute providing that employee excused for
jury duty should be entitled to full compensation from employer, less
jury service fee).
---------------------------------------------------------------------------
Workers' Compensation Laws.--``This court repeatedly has upheld
the authority of the States to establish by legislation departures from
the fellow-servant rule and other common-law rules affecting the
employer's liability for personal injuries to the employee.''\110\
``These decisions have established the propositions that the rules of
law concerning the employer's responsibility for personal injury or
death of an employee arising in the course of em
[[Page 1589]]
ployment are not beyond alteration by legislation in the public
interest; that no person has a vested right entitling him to have these
any more than other rules of law remain unchanged for his benefit; and
that, if we exclude arbitrary and unreasonable changes, liability may be
imposed upon the employer without fault, and the rules respecting his
responsibility to one employee for the negligence of another and
respecting contributory negligence and assumption of risk are subject to
legislative change.''\111\ Accordingly, a state statute which provided
an exclusive system to govern the liabilities of employers and the
rights of employees and their dependents to compensation for disabling
injuries and death caused by accident in certain hazardous
occupations,\112\ was held not to work a denial of due process in
rendering the employer liable irrespective of the doctrines of
negligence, contributory negligence, assumption of risk, and negligence
of fellow-servants, nor in depriving the employee or his dependents of
the higher damages which, in some cases, might be rendered under these
doctrines.\113\ Likewise, an act which allowed an injured employee an
election of remedies permitting restricted recovery under a compensation
law although guilty of contributory negligence, and full compensatory
damages under the Employers' Liability Act, did not deprive an employer
of his property without due process of law.\114\
\110\New York Cent. R.R. v. White, 243 U.S. 188, 200 (1917).
\111\Arizona Employers' Liability Cases, 250 U.S. 400, 419-20
(1919).
\112\In determining what occupations may be brought under the
designation of ``hazardous,'' the legislature may carry the idea to the
``vanishing point.'' Ward & Gow v. Krinsky, 259 U.S. 503, 520 (1922).
\113\New York Central R.R. v. White, 243 U.S. 188 (1917);
Mountain Timber Co. v. Washington, 243 U.S. 219 (1917).
\114\Arizona Employers' Liability Cases, 250 U.S. 400 (1919).
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The imposition upon coal mine operators, and ultimately coal
consumers, of the liability of compensating former employees who
terminated work in the industry before passage of the law for black lung
disabilities contracted in the course of their work was sustained by the
Court as a rational measure to spread the costs of the employees'
disabilities to those who have profited from the fruits of their
labor.\115\ Legislation readjusting rights and burdens is not unlawful
solely because it upsets otherwise settled expectations, but it must
take account of the realities previously existing, i.e., that the danger
may not have been known or appreciated, or that actions might have been
taken in reliance upon the current state of the law; therefore,
legislation imposing liability on the basis of deterrence or of
blameworthiness might not have passed muster.
\115\Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14-20
(1976). But see id. at 38 (Justice Powell concurring).
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[[Page 1590]]
Contracts limiting liability for injuries, consummated in
advance of the injury received, may be prohibited by the legislature,
which may further stipulate that subsequent acceptance of benefits under
such contracts shall not constitute satisfaction of a claim for injuries
thereafter sustained.\116\ Also, as applied to a nonresident alien
employee hired within the State but injured outside, an act forbidding
any contracts exempting employers from liability for injuries outside
the State has been construed as not denying due process to the
employer.\117\ The fact that a State, after having allowed employers to
cover their liability with a private insurer, subsequently withdrew that
privilege and required them to contribute to a state insurance fund was
held to effect no unconstitutional deprivation as applied to an employer
who had obtained protection from an insurance company before this change
went into effect.\118\ As long as the right to come under a workmen's
compensation statute is optional with an employer, the latter, having
chosen to accept benefits thereof, is estopped from attempting to escape
its burdens by challenging the constitutionality of a provision thereof
which makes the finding of fact of an industrial commission conclusive
if supported by any evidence regardless of its preponderance.\119\
\116\Chicago, B. & Q. R.R. v. McGuire, 219 U.S. 549 (1911).
\117\Alaska Packers Ass'n v. Industrial Accident Comm'n, 294
U.S. 532 (1935).
\118\Thornton v. Duffy, 254 U.S. 361 (1920).
\119\Booth Fisheries v. Industrial Comm'n, 271 U.S. 208 (1926).
---------------------------------------------------------------------------
When, by the terms of a workers' compensation statute, the
wrongdoer, in case of wrongful death, is obliged to indemnify the
employer or the insurance carrier of the employer of the decedent, in
the amount which the latter were required under the act to contribute
into special compensation funds, no unconstitutional deprivation of the
wrongdoer's property was discernible.\120\ By the same course of
reasoning neither the employer nor the carrier was held to have been
denied due process by another provision in an act requiring payments by
them, in case an injured employee dies without dependents, into special
funds to be used for vocational rehabilitation or disability
compensation of injured workers of other establishments.\121\
Compensation also need not be based exclusively on loss of earning
power, and an award authorized by statute for injuries resulting in
disfigurement of the face or head, independent of compensation for
inability to work, has been conceded to be neither an arbitrary nor
oppressive exercise of the police power.\122\
\120\Staten Island Ry. v. Phoenix Co., 281 U.S. 98 (1930).
\121\Sheehan Co. v. Shuler, 265 U.S. 371 (1924); New York State
Rys. v. Shuler, 265 U.S. 379 (1924).
\122\New York Cent. R.R. v. Bianc, 250 U.S. 596 (1919).
Attorneys are not deprived of property or their liberty of contract by
restriction imposed by the State on the fees which they may charge in
cases arising under the workmen's compensation law. Yeiser v. Dysart,
267 U.S. 540 (1925).
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[[Page 1591]]
Collective Bargaining.--During the 1930s, liberty, as translated
into what one Justice labeled the Allgeyer-Lochner-Adair-Coppage
doctrine,\123\ lost its potency as an obstacle to legislation calculated
to enhance the bargaining capacity of workers as against that already
possessed by their employers. Prior to the manifestation, in Senn v.
Tile Layers Union,\124\ of a greater willingness to defer to legislative
judgment as to the wisdom and need of such enactments, the Court had, on
occasion, sustained measures affecting the employment relationship,
e.g., a statute requiring every corporation to furnish, upon request by
any employee being discharged or leaving its service, a letter, signed
by the superintendent or manager, setting forth the nature and duration
of the employee's service and the true cause for leaving.\125\ Added
provisions that such letters should be on plain paper selected by the em
[[Page 1592]]
ployee, signed in ink and sealed, and free from superfluous figures and
words, were also sustained as not amounting to any unconstitutional
deprivation of liberty and property.\126\ On the ground that the right
to strike is not absolute, the Court in a similar manner upheld a
statute under which a labor union official was punished for having
ordered a strike for the purpose of coercing an employer to pay a wage
claim of a former employee.\127\
\123\Justice Black in Lincoln Federal Labor Union v.
Northwestern Iron & Metal Co., 335 U.S. 525, 535 (1949). In his
concurring opinion, contained in the companion case of AFL v. American
Sash & Door Co., 335 U.S. 538, 543-44 (1949), Justice Frankfurter
summarized the now obsolete doctrines employed by the Court to strike
down state laws fostering unionization. ``[U]nionization encountered the
shibboleths of a premachine age and these were reflected in juridical
assumptions that survived the facts on which they were based. Adam Smith
was treated as though his generalizations had been imparted to him on
Sinai and not as a thinker who addressed himself to the elimination of
restrictions which had become fetters upon initiative and enterprise in
his day. Basic human rights expressed by the constitutional conception
of `liberty' were equated with theories of laissez faire. The result was
that economic views of confined validity were treated by lawyers and
judges as though the Framers had enshrined them in the Constitution.
. . . The attitude which regarded any legislative encroachment upon the
existing economic order as infected with unconstitutionality led to
disrespect for legislative attempts to strengthen the wage-earners'
bargaining power. With that attitude as a premise, Adair v. United
States, 208 U.S. 161 (1908), and Coppage v. Kansas, 236 U.S. 1 (1915),
followed logically enough; not even Truax v. Corrigan, 257 U.S. 312
(1921), could be considered unexpected.''
In Adair and Coppage the Court voided statutes outlawing
``yellow dog'' contracts whereby, as a condition of obtaining
employment, a worker had to agree not to join or to remain a member of a
union; these laws, the Court ruled, impaired the employer's ``freedom of
contract''--the employer's unrestricted right to hire and fire. In
Truax, the Court on similar grounds invalidated an Arizona statute which
denied the use of injunctions to employers seeking to restrain picketing
and various other communicative actions by striking employees. And in
Wolff Co. v. Industrial Court, 262 U.S. 522 (1923); 267 U.S. 552 (1925)
and Dorchy v. Kansas, 264 U.S. 286 (1924), the Court had also ruled that
a statute compelling employers and employees to submit their
controversies over wages and hours to state arbitration was
unconstitutional as part of a system compelling employers and employees
to continue in business on terms not of their own making.
\124\301 U.S. 486 (1937).
\125\Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922). In
conjunction with its approval of this statute, the Court also sanctioned
judicial enforcement of a local policy rule which rendered illegal an
agreement of several insurance companies having a local monopoly of a
line of insurance, to the effect that no company would employ within two
years anyone who had been discharged from, or left, the service of any
of the others.
\126\Chicago, R.I. & P. Ry. v. Perry, 259 U.S. 548 (1922).
\127\Dorchy v. Kansas, 272 U.S. 306 (1926).
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The significance of Senn v. Tile Layers Union\128\ as an
indicator of the range of the alteration of the Court's views concerning
the constitutionality of state labor legislation, derives in part from
the fact that the statute upheld therein was not appreciably different
from that voided in Truax v. Corrigan.\129\ Both statutes withheld the
remedy of injunction. Because, however, the invalidated act did not
contain the more liberal and also more precise definition of a labor
dispute set forth in the sustained enactment and, above all, did not
affirmatively purport to sanction peaceful picketing only, the Court was
enabled to maintain that Truax v. Corrigan, insofar as ``the statute
there in question was . . . applied to legalize conduct which was not
simply peaceful picketing,'' was distinguishable. The statute upheld in
Senn authorized the giving of publicity to labor disputes, declared
peaceful picketing and patrolling lawful, and prohibited the granting of
injunctions against such conduct; the statute was applied to deny an
injunction to a tiling contractor being picketed by a union because he
refused to sign a closed shop agreement containing a provision requiring
him to abstain from working in his own business as a tile layer or
helper. Inasmuch as the enhancement of job opportunities for members of
the union was a legitimate objective, the State was held competent to
authorize the fostering of that end by peaceful picketing, and the fact
that the sustaining of the union in its efforts at peaceful persuasion
might have the effect of preventing Senn from continuing in business as
an independent entrepreneur was declared to present an issue of public
policy exclusively for legislative determination.\130\
\128\301 U.S. 468 (1937).
\129\257 U.S. 312 (1921).
\130\Cases disposing of the contention that restraints on
picketing amount to a denial of freedom of speech and constitute
therefore a deprivation of liberty without due process of law have been
set forth under the First Amendment. See pp. 1102, 1121, supra.
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Years later, the policy of many state legislatures had evolved
in the direction of attempting to control the abuse of the enormous
economic power that previously enacted protective measures had
[[Page 1593]]
enabled labor unions to amass, and here too the Court found restrictions
constitutional. Thus the Court upheld application of a state prohibition
on racial discrimination by unions, rejecting claims that the measure
interfered unlawfully with the union's right to choose its members and
abridged its property rights, and liberty of contract. Inasmuch as the
union ``[held] itself out to represent the general business needs of
employees'' and functioned ``under the protection of the State,'' the
union was deemed to have forfeited the right to claim exemption from
legislation protecting workers against discriminatory exclusion.\131\
\131\Railway Mail Ass'n v. Corsi, 326 U.S. 88, 94 (1945).
Justice Frankfurter, concurring, declared that ``the insistence by
individuals of their private prejudices . . ., in relations like those
now before us, ought not to have a higher constitutional sanction than
the determination of a State to extend the area of nondiscrimination
beyond that which the Constitution itself exacts.'' Id. at 98.
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Similarly approved as constitutional in Lincoln Federal Labor
Union v. Northwestern Iron & Metal Co.\132\ and AFL v. American Sash &
Door Co.\133\ were state laws outlawing the closed shop. When labor
unions invoked in their own defense the freedom of contract doctrine
that hitherto had been employed to nullify legislation intended for
their protection, the Court, speaking through Justice Black, announced
its refusal ``to return . . . to . . . [a] due process philosophy that
has been deliberately discarded. . . . The due process clause,'' it
maintained, does not ``forbid a State to pass laws clearly designed to
safeguard the opportunity of nonunion workers to get and hold jobs, free
from discrimination against them because they are nonunion
workers.''\134\ Also in harmony with the last mentioned pair of cases is
UAW v. WERB,\135\ upholding enforcement of the Wisconsin Employment
Peace Act to proscribe as an unfair labor practice efforts of a union,
after collective bargaining negotiations had become deadlocked, to
coerce an employer through a ``slow-down'' in production achieved by the
frequent, irregular, and unannounced calling of union meetings during
working hours. ``No one,'' declared the Court, can question ``the
State's power to police coercion by . . . methods'' which involve
``considerable injury to
[[Page 1594]]
property and intimidation of other employees by threats.''\136\ Finally,
in Giboney v. Empire Storage Co.,\137\ the Court acknowledged that no
violation of the Constitution results when a state law forbidding
agreements in restraint of trade is construed by state courts as
forbidding members of a union of ice peddlers from peacefully picketing
a wholesale ice distributor's place of business for the sole purpose of
inducing the latter not to sell to nonunion peddlers.
\132\335 U.S. 525 (1949).
\133\335 U.S. 538 (1949).
\134\335 U.S. 525, 534, 537. In a lengthy opinion, in which he
registered his concurrence with both decisions, Justice Frankfurter set
forth extensive statistical data calculated to prove that labor unions
not only were possessed of considerable economic power but by virtue of
such power were no longer dependent on the closed shop for survival. He
would therefore leave to the legislatures the determination ``whether it
is preferable in the public interest that trade unions should be
subjected to state intervention or left to the free play of social
forces, whether experience has disclosed `union unfair labor practices,'
and if so, whether legislative correction is more appropriate than self-
discipline and pressure of public opinion. . . .'' Id. at 538, 549-50.
\135\336 U.S. 245 (1949).
\136\Id. at 253.
\137\336 U.S. 490 (1949). Other recent cases regulating
picketing are treated under the First Amendment. See pp. 1173-79, supra.
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Regulation of Business Enterprises: Rates, Charges, and Conditions
of Service
``Business Affected With a Public Interest''--In endeavoring to
measure the impact of the due process clause upon efforts by the States
to control the charges exacted by various businesses for their services,
the Supreme Court, almost from the inception of the Fourteenth
Amendment, devoted itself to the examination of two questions: (1)
whether the clause precluded that kind of regulation of certain types of
business, and (2) the nature of the restraint, if any, which this clause
imposed on state control of rates in the case of businesses as to which
such control existed. For a brief interval following the ratification of
the Fourteenth Amendment, the Supreme Court appears to have
underestimated the significance of the due process clause as a
substantive restraint on the power of States to fix rates chargeable by
an industry deemed appropriately subject to such controls. Thus, in Munn
v. Illinois,\138\ the first of the ``Granger Cases,'' in which maximum
charges established by a state legislature for Chicago grain elevator
companies were challenged, not as being confiscatory in character, but
rather as a regulation beyond the power of any state agency to impose,
the Court, in an opinion that was largely dictum, declared that the due
process clause did not operate as a safeguard against oppressive rates,
that if regulation was permissible, the severity thereof was within
legislative discretion and could be ameliorated only by resort to the
polls. Not much time elapsed, however, before the Court effected a
complete withdrawal from this position. By 1890 \139\ it had fully
converted the due process clause into a positive restriction which the
judicial branch was duty bound to enforce whenever state agencies sought
to impose rates which, in its estimation, were arbitrary or
unreasonable.
\138\94 U.S. 113 (1877).
\139\Chicago, M. & St.P. Ry. v. Minnesota, 134 U.S. 418 (1890).
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[[Page 1595]]
In contrast to the speed with which the Court arrived at those
above mentioned conclusions, more than fifty years were to elapse before
it developed its currently applicable formula for determining the
propriety of subjecting specific businesses to state regulation of their
prices or charges. Prior to 1934, unless a business was ``affected with
a public interest,'' control of its prices, rates, or conditions of
service was viewed as an unconstitutional deprivation of liberty and
property without due process of law. During the period of its
application, however, this standard, ``business affected with a public
interest,'' never acquired any precise meaning, and as a consequence
lawyers were never able to identify all those qualities or attributes
which invariably distinguished a business so affected from one not so
affected. The most coherent effort by the Court was the following
classification prepared by Chief Justice Taft.\140\ ``(1) Those
[businesses] which are carried on under the authority of a public grant
of privileges which either expressly or impliedly imposes the
affirmative duty of rendering a public service demanded by any member of
the public. Such are the railroads, other common carriers and public
utilities. (2) Certain occupations, regarded as exceptional, the public
interest attaching to which, recognized from earliest times, has
survived the period of arbitrary laws by Parliament or Colonial
legislatures for regulating all trades and callings. Such are those of
the keepers of inns, cabs and grist mills. . . . (3) Businesses which
though not public at their inception may be fairly said to have risen to
be such and have become subject in consequence to some government
regulation. They have come to hold such a peculiar relation to the
public that this is superimposed upon them. In the language of the
cases, the owner by devoting his business to the public use, in effect
grants the public an interest in that use and subjects himself to public
regulation to the extent of that interest although the property
continues to belong to its private owner and to be entitled to
protection accordingly.''
\140\Wolff Packing Co. v. Industrial Court, 262 U.S. 522, 535-36
(1923).
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Through application of this now outmoded formula the Court found
it possible to sustain state laws regulating charges made by grain
elevators,\141\ stockyards,\142\ and tobacco warehouses,\143\ and fire
insurance rates\144\ and commissions paid to fire insurance agents.\145\
Voided, because the businesses sought to be controlled
[[Page 1596]]
were deemed to be not so affected, were state statutes fixing the price
at which gasoline may be sold,\146\ or at which ticket brokers may
resell tickets purchased from theatres,\147\ and limiting competition in
the manufacture and sale of ice through the withholding of licenses to
engage therein.\148\
\141\Munn v. Illinois, 94 U.S. 113 (1877); Budd v. New York, 143
U.S. 517, 546 (1892); Brass v. North Dakota ex rel. Stoesser, 153 U.S.
391 (1894).
\142\Cotting v. Kansas City Stock Yards Co., 183 U.S. 79 (1901).
\143\Townsend v. Yeomans, 301 U.S. 441 (1937).
\144\German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914);
Aetna Insurance Co. v. Hyde, 275 U.S. 440 (1928).
\145\O'Gorman & Young v. Hartford Ins. Co., 282 U.S. 251 (1931).
\146\Williams v. Standard Oil Co., 278 U.S. 235 (1929).
\147\Tyson & Bro. v. Banton, 273 U.S. 418 (1927).
\148\New State Ice Co. v. Liebmann, 285 U.S. 262 (1932). See
also Adams v. Tanner, 244 U.S. 590 (1917); Weaver v. Palmer Bro., 270
U.S. 402 (1926).
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Nebbia v. New York.--In upholding, by a vote of five-to-four, a
depression-induced New York statute fixing prices at which fluid milk
might be sold, the Court in 1934 finally shelved the concept of ``a
business affected with a public interest.''\149\ Older decisions,
insofar as they negatived a power to control prices in businesses found
not ``to be clothed with a public use'' were now viewed as resting,
``finally, upon the basis that the requirements of due process were not
met because the laws were found arbitrary in their operation and effect.
Price control, like any other form of regulation, is [now]
unconstitutional only if arbitrary, discriminatory, or demonstrably
irrelevant to the policy the legislature is free to adopt, and hence an
unnecessary and unwarranted interference with individual liberty.''
Conceding that ``the dairy industry is not, in the accepted sense of the
phrase, a public utility,'' that is, a ``business affected with a public
interest,'' the Court in effect declared that price control henceforth
is to be viewed merely as an exercise by the government of its police
power, and as such is subject only to the restrictions which due process
imposes on arbitrary interference with liberty and property. Nor was the
Court disturbed by the fact that a ``scientific validity'' had been
claimed for the theories of Adam Smith relating to the ``price that will
clear the market.'' However much the minority might stress the
unreasonableness of any artificial state regulation interfering with
[[Page 1597]]
the determination of prices by ``natural forces,''\150\ the majority was
content to note that the ``due process clause makes no mention of
prices'' and that ``the courts are both incompetent and unauthorized to
deal with the wisdom of the policy adopted or the practicability of the
law enacted to forward it.''
\149\Nebbia v. New York, 291 U.S. 502, 531-32, 535-37, 539
(1934). In reaching this conclusion the Court might be said to have
elevated to the status of prevailing doctrine the views advanced in
previous decisions by dissenting Justices. Thus, Justice Stone,
dissenting in Ribnik v. McBride, 277 U.S. 350, 359-60 (1928), had
declared: ``Price regulation is within the State's power whenever any
combination of circumstances seriously curtails the regulative force of
competition so that buyers or sellers are placed at such a disadvantage
in the bargaining struggle that a legislature might reasonably
anticipate serious consequences to the community as a whole.'' In his
dissenting opinion in New State Ice Co. v. Liebmann, 285 U.S. 262, 302-
03 (1932), Justice Brandeis had also observed: ``The notion of a
distinct category of business `affected with a public interest'
employing property `devoted to a public use' rests upon historical
error. In my opinion the true principle is that the State's power
extends to every regulation of any business reasonably required and
appropriate for the public protection. I find in the due process clause
no other limitation upon the character or the scope of regulation
permissible.''
\150\Justice McReynolds, speaking for the dissenting Justices,
labelled the controls imposed by the challenged statute as a ``fanciful
scheme to protect the farmer against undue exactions by prescribing the
price at which milk disposed of by him at will may be resold.''
Intimating that the New York statute was as efficacious as a safety
regulation which required ``householders to pour oil on their roofs as a
means of curbing the spread of a neighborhood fire,'' Justice McReynolds
insisted that ``this Court must have regard to the wisdom of the
enactment,'' and must determine ``whether the means proposed have
reasonable relation to something within legislative power.'' 291 U.S.,
556, 558 (1934).
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Having thus concluded that it is no longer the nature of the
business that determines the validity of a regulation of its rates or
charges but solely the reasonableness of the regulation, the Court had
little difficulty in upholding, in Olsen v. Nebraska,\151\ a state law
prescribing the maximum commission which private employment agencies may
charge. Rejecting the contentions of the employment agencies that the
need for such protective legislation had not been shown, the Court held
that differences of opinion as to the wisdom, need, or appropriateness
of the legislation ``suggest a choice which should be left to the
States;'' and that there was ``no necessity for the State to demonstrate
before us that evils persist despite the competition'' between public,
charitable, and private employment agencies. The older case of Ribnik v.
McBride,\152\ which had invalidated similar legislation upon the now
obsolete concept of a ``business affected with a public interest,'' was
expressly overruled.
\151\313 U.S. 236, 246 (1941).
\152\277 U.S. 350 (1928). Adams v. Tanner, 244 U.S. 590 (1917),
was disapproved in Ferguson v. Skrupa, 372 U.S. 726 (1963), and Tyson &
Bro. v. Banton, 273 U.S. 418 (1927), was effectively overruled in Gold
v. DiCarlo, 380 U.S. 520 (1965), without the Court hearing argument on
it.
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Judicial Review of Publicly Determined Rates and Charges
Development.--In Munn v. Illinois,\153\ its initial holding
concerning the applicability of the Fourteenth Amendment to governmental
price fixing,\154\ the Court not only asserted that governmental
regulation of rates charged by public utilities and allied businesses
was within the States' police power, but added that the determination of
such rates by a legislature was conclusive and not subject to judicial
review or revision. Expanding the range of per
[[Page 1598]]
missible governmental fixing of prices, the Court in Nebbia\155\
declared that prices established for business in general would invite
judicial condemnation only if ``arbitrary, discriminatory, or
demonstrably irrelevant to the policy the legislature is free to
adopt.'' The latter standard of judicial appraisal, as will be
subsequently noted, represents less of a departure from the principle
enunciated in the Munn case than that which the Court evolved, in the
years following 1877, to measure the validity of state imposed public
utility rates, and this difference in the judicial treatment of prices
and rates accordingly warrants an explanation at the outset. Unlike
operators of public utilities who, in return for the grant of certain
exclusive, virtually monopolistic privileges by the governmental unit
enfranchising them, must assume an obligation to provide continuous
service, proprietors of other businesses are in receipt of no similar
special advantages and accordingly are unrestricted in the exercise of
their right to liquidate and close their establishments. Owners of
ordinary businesses, therefore, at liberty to escape by dissolution the
consequences of publicly imposed charges deemed to be oppressive, have
thus far been unable to convince the courts that they too, no less than
public utilities, are in need of protection through judicial review.
\153\94 U.S. 113 (1877). See also Peik v. Chicago & Nw. Ry., 94
U.S. 164 (1877).
\154\Rate-making is deemed to be one species of price fixing.
FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 603 (1942).
\155\Nebbia v. New York, 291 U.S. 502, 539 (1934).
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Consistently with its initial pronouncement in the Munn case
that reasonableness of compensation allowed under permissible rate
regulation presented a legislative rather than a judicial question, the
Court, in Davidson v. New Orleans,\156\ also rejected the contention
that, by virtue of the due process clause, businesses were nevertheless
entitled to ``just compensation'' for losses resulting from price
controls. Less than a decade was to elapse, however, before the Court,
appalled perhaps by prospective consequences of leaving business ``at
the mercy of the majority of the legislature,'' began to reverse itself.
Thus, |