Due Process of Law

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.

Annotations

Due process under the Fourteenth Amendment can be broken down into two categories: procedural due process and substantive due process. Procedural due process, based on principles of “fundamental fairness,” addresses which legal procedures are required to be followed in state proceedings. Relevant issues, as discussed in detail below, include notice, opportunity for hearing, confrontation and cross-examination, discovery, basis of decision, and availability of counsel. Substantive due process, although also based on principles of “fundamental fairness,” is used to evaluate whether a law can be applied by states at all, regardless of the procedure followed. Substantive due process has generally dealt with specific subject areas, such as liberty of contract or privacy, and over time has alternately emphasized the importance of economic and noneconomic matters. In theory, the issues of procedural and substantive due process are closely related. In reality, substantive due process has had greater political import, as significant portions of a state legislature’s substantive jurisdiction can be restricted by its application.

Although the extent of the rights protected by substantive due process may be controversial, its theoretical basis is firmly established and forms the basis for much of modern constitutional case law. Passage of the Reconstruction Amendments (13th, 14th, and 15th) gave the federal courts the authority to intervene when a state threatened fundamental rights of its citizens,³⁹ and one of the most important doctrines flowing from this is the application of the Bill of Rights to the states through the Due Process Clause.⁴⁰ Through the process of “selective incorporation,” most of the provisions of the first eight Amendments, such as free speech, freedom of religion, and protection against unreasonable searches and seizures, are applied against the states as they are against the federal government. Though application of these rights against the states is no longer controversial, the incorporation of other substantive rights, as is discussed in detail below, has been.

“Person”.—The Due Process Clause provides that no states shall deprive any “person” of “life, liberty or property” without due process of law. A historical controversy 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.⁴¹ As early as the 1877 Granger Cases⁴² the Supreme Court upheld various regulatory state laws without raising any question as to whether a corporation could advance due process claims. Further, there is no doubt that a corporation may not be deprived of its property without due process of law.⁴³ Although various decisions have held that the “liberty” guaranteed by the Fourteenth Amendment is the liberty of natural,⁴⁴ not artificial, persons,⁴⁵ nevertheless, in 1936, a newspaper corporation successfully objected that a state law deprived it of liberty of the press.⁴⁶

A separate question is the ability of a government official to invoke the Due Process Clause to protect the interests of his office. Ordinarily, the mere official interest of a public officer, such as the interest in enforcing a law, has not been deemed adequate to enable him to challenge the constitutionality of a law under the Fourteenth Amendment.⁴⁷ Similarly, municipal corporations have no standing “to invoke the provisions of the Fourteenth Amendment in opposition to the will of their creator,” the state.⁴⁸ 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 statutes in relation to which they have official duties,” and, accordingly, may apply to federal courts “to review decisions of state courts declaring state statutes, which [they] seek to enforce, to be repugnant to the [Fourteenth Amendment of] the Federal Constitution . . . .”⁴⁹

“Property” and Police Power.—States have an inherent “police power” to promote public safety, health, morals, public convenience, and general prosperity,⁵⁰ but the extent of the power may vary based on the subject matter over which it is exercised.⁵¹ If a police power regulation goes too far, it will be recognized as a taking of property for which compensation must be paid.⁵² Thus, the means employed to effect its exercise may be neither arbitrary nor oppressive but must bear a real and substantial relation to an end that is public, specifically, the public health, safety, or morals, or some other aspect of the general welfare.⁵³

An ulterior public advantage, however, may justify a comparatively insignificant taking of private property for what seems to be a private use.⁵⁴ 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.”⁵⁵ Moreover, it is elementary that enforcement of a law passed in the legitimate exertion of the police power is not a taking without due process of law, even if the cost is borne by the regulated.⁵⁶ Initial compliance with a regulation that is valid when adopted, however, does not preclude later protest if that regulation subsequently becomes confiscatory in its operation.⁵⁷

“Liberty”.—As will be discussed in detail below, the substantive “liberty” guaranteed by the Due Process Clause has been variously defined by the Court. 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.⁵⁸ Nonetheless, the Court is generally chary of expanding the concept absent statutorily recognized rights.⁵⁹

Long before the passage of the 14th Amendment, the Due Process Clause of the Fifth Amendment was recognized as a restraint upon the Federal Government, but only in the narrow sense that a legislature needed to provide procedural “due process” for the enforcement of law.⁶⁰ Although individual Justices suggested early on that particular legislation could be so in conflict with precepts of natural law as to render it wholly unconstitutional,⁶¹ the potential of the Due Process Clause of the 14th Amendment as a substantive restraint on state action appears to have been grossly underestimated in the years immediately following its adoption.⁶²

Thus, early invocations of “substantive” due process were unsuccessful. In the Slaughter-House Cases,⁶³ discussed previously in the context of the Privileges or Immunities Clause,⁶⁴ a group of butchers challenged a Louisiana statute conferring the exclusive privilege of butchering cattle in New Orleans to one corporation. In reviewing the validity of this monopoly, the Court noted that the prohibition against a deprivation of property without due process “has been in the Constitution since the adoption of the fifth amendment, as a restraint upon the Federal power. It is also to be found in some forms of expression in the constitutions of nearly all the States, as a restraint upon the power of the States. . . . We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision.”⁶⁵

Four years later, in Munn v. Illinois,⁶⁶ the Court reviewed the regulation of rates charged for the transportation and warehousing of grain, and again refused to interpret the due process clause as invalidating substantive state legislation. Rejecting contentions that such legislation effected an unconstitutional deprivation of property by preventing the owner from earning a reasonable compensation for its use and by transferring an interest in a private enterprise to the public, 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.”

In Davidson v. New Orleans,⁶⁷ Justice Miller also counseled against a departure from these conventional applications of due process, although he acknowledged the difficulty of arriving at a precise, all-inclusive definition of the clause. “It is not a little remarkable,” he observed, “that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the Federal government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion. But while it has been part of the Constitution, as a restraint upon the power of the States, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the fourteenth amendment. In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded. If, therefore, it were possible to define what it is for a State to deprive a person of life, liberty, or property without due process of law, in terms which would cover every exercise of power thus forbidden to the State, and exclude those which are not, no more useful construction could be furnished by this or any other court to any part of the fundamental law. But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom, we think, 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, with the reasoning on which such decisions may be founded.”

A bare half-dozen years later, however, in Hurtado v. California,⁶⁸ the Justices gave warning of an impending modification of their views. Justice Mathews, speaking for the Court, noted that due process under the United States Constitution differed from due process in English common law in that the latter applied only to executive and judicial acts, whereas the former also applied to legislative acts. Consequently, the limits of the due process under the 14th Amendment could not be appraised solely in terms of the “sanction of settled usage” under common law. The Court then declared that “[a]rbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, 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.” By this language, the states were put on notice that all types of state legislation, whether dealing with procedural or substantive rights, were now subject to the scrutiny of the Court when questions of essential justice were raised.

What induced the Court to overcome its fears of increased judicial oversight and of upsetting the balance of powers between the Federal Government and the states was state remedial social legislation, enacted in the wake of industrial expansion, and the impact of such legislation on property rights. The added emphasis on the Due Process Clause also afforded the Court an opportunity to compensate for its earlier nullification of much of the privileges or immunities clause of the Amendment. Legal theories about the relationship between the government powers and private rights were available to demonstrate the impropriety of leaving to the state legislatures the same ample range of police power they had enjoyed prior to the Civil War. In the meantime, however, the SlaughterHouse Cases and Munn v. Illinois had to be overruled at least in part.

About twenty years were required to complete this process, in the course of which two strands of reasoning were developed. The first was a view advanced by Justice Field in a dissent in Munn v. Illinois,⁶⁹ namely, that state police power is solely a power to prevent injury to the “peace, good order, morals, and health of the community.”⁷⁰ This reasoning was adopted by the Court in Mugler v. Kansas,⁷¹ where, despite upholding a state alcohol regulation, the Court held that “[i]t does not at all follow that every statute enacted ostensibly for the promotion of [public health, morals or safety] is to be accepted as a legitimate exertion of the police powers of the state.” The second strand, which had been espoused by Justice Bradley in his dissent in the Slaughter-House Cases,⁷² tentatively transformed ideas embodying the social compact and natural rights into constitutionally enforceable limitations upon government.⁷³ 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 fundamental natural rights of liberty and property. As articulated by Justice Bradley, these rights were equated with freedom to pursue a lawful calling and to make contracts for that purpose.⁷⁴

Having narrowed the scope of the state’s police power in deference to the natural rights of liberty and property, the Court proceeded to incorporate into due process theories of laissez faire economics, reinforced by the doctrine of Social Darwinism (as elaborated by Herbert Spencer). Thus, “liberty” became synonymous with governmental non-interference in the field of private economic relations. For instance, in Budd v. New York,⁷⁵ Justice Brewer declared in dictum: “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.”

Next, the Court watered down the accepted maxim that a state statute must be presumed valid until clearly shown to be otherwise, by shifting focus to whether facts existed to justify a particular law.⁷⁶ The original position could be seen in earlier cases such as Munn v. Illinois,⁷⁷ in which the Court sustained the legislation before it by presuming that such facts existed: “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, however, in Mugler v. Kansas,⁷⁸ rather than presume the relevant facts, the Court sustained a statewide anti-liquor law based on the proposition that the deleterious social effects of the excessive use of alcoholic liquors were sufficiently notorious for the Court to be able to take notice of them.⁷⁹ This opened the door for future Court appraisals of the facts that had induced the legislature to enact the statute.⁸⁰

Mugler was significant because it implied that, unless the Court found by judicial notice the existence of justifying fact, it would invalidate a police power regulation as bearing no reasonable or adequate relation to the purposes to be subserved by the latter— namely, health, morals, or safety. Interestingly, the Court found the rule of presumed validity quite serviceable for appraising state legislation affecting neither liberty nor property, but for legislation constituting governmental interference in the field of economic relations, especially labor-management relations, the Court found the principle of judicial notice more advantageous. In litigation embracing the latter type of legislation, the Court would also tend to shift the burden of proof, which had been with litigants challenging legislation, to the state seeking enforcement. Thus, the state had the task of demonstrating that a statute interfering with a 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. As will be discussed in detail below, this approach was used from the turn of the century through the mid1930s to strike down numerous laws that were seen as restricting economic liberties.

As a result of the Depression, however, the laissez faire approach to economic regulation lost favor to the dictates of the New Deal. Thus, in 1934, the Court in Nebbia v. New York⁸¹ discarded this approach to economic legislation. The modern approach is exemplified by the 1955 decision, Williamson v. Lee Optical Co.,⁸² which upheld a statutory scheme regulating the sale of eyeglasses that favored ophthalmologists and optometrists in private professional practice and disadvantaged opticians and 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.’”⁸³ The Court went on to assess the reasons that might have justified the legislature in prescribing the regulation at issue, leaving open the possibility that some regulation might be found unreasonable.⁸⁴ More recent decisions have limited this inquiry to whether the legislation is arbitrary or irrational, and have abandoned any requirement of “reasonableness.”⁸⁵

Liberty of Contract.—One of the most important concepts used during the ascendancy of economic due process was liberty of contract. The original idea of economic liberties was advanced by Justices Bradley and Field in the Slaughter-House Cases,⁸⁶ and elevated to the status of accepted doctrine in Allgeyer v. Louisiana,⁸⁷ It was then used repeatedly during the early part of this century to strike down state and federal labor regulations. “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.”⁸⁸

The Court, however, did sustain some labor regulations by acknowledging that freedom of contract was “a qualified and not an absolute right. . . . Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community. . . . In dealing with the relation of the employer and employed, the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression.”⁸⁹

Still, the Court 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 serve this end, the Court intermittently employed the rule of judicial notice in a manner best exemplified by a comparison of the early cases of Holden v. Hardy⁹⁰ and Lochner v. New York.⁹¹ In Holden v. Hardy,⁹² the Court, relying on the principle of presumed validity, allowed the burden of proof to remain with those attacking a Utah act limiting the period of labor in mines to eight hours per day. Recognizing 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 law that the 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.”

Seven years later, however, a radically altered Court was predisposed in favor of the doctrine of judicial notice. In Lochner v. New York,⁹³ the Court found that a law restricting employment in bakeries to ten hours per day and 60 hours per week was not a true health measure, but was merely a labor regulation, and thus was an unconstitutional interference with the right of adult laborers, sui juris, to contract for their means of livelihood. Denying that the Court was 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.” Then, in disregard of the medical evidence proffered, the Justice stated: “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 other 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?”⁹⁴

Justice Harlan, in dissent, asserted that the law was a health regulation, 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. He concluded that the very existence of such evidence left the reasonableness of the measure open to discussion and thus within the discretion of the legislature. “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. . . . [L]egislative 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.”⁹⁵

A second dissenting opinion, written by Justice Holmes, has received the greater measure of attention as a forecast of the line of reasoning the Court was to follow 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 relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution. . . . I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”⁹⁶

Justice Holmes did not reject the basic concept of substantive due process, but rather the Court’s presumption against economic regulation.⁹⁷ Thus, Justice Holmes whether consciously or not, was prepared to support, along with his opponents in the majority, 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 use of the doctrine of judicial notice by the former and the doctrine of presumed validity by the latter.

Holmes’ dissent soon bore fruit in Muller v. Oregon⁹⁸ and Bunting v. Oregon,⁹⁹ which allowed, respectively, regulation of hours worked by women and by men in certain industries. The doctrinal approach employed was to find that the regulation was supported by evidence despite the shift in the burden of proof entailed by application of the principle of judicial notice. Thus, counsel defending the constitutionality of social legislation developed the practice of submitting voluminous factual briefs, known as “Brandeis Briefs,”¹⁰⁰ 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,¹⁰¹ 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 a minimum wage for women and children,¹⁰² 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.

During the great Depression, however, the laissez faire tenet of self-help was replaced by the belief that it is peculiarly the duty of government to help those who are unable to help themselves. To sustain this remedial legislation, the Court had to extensively revise its previously formulated concepts of “liberty” under the Due Process Clause. Thus, the Court, in overturning prior holdings and sustaining minimum wage legislation,¹⁰³ took judicial notice of the demands for relief arising from the Depression. And, in upholding state legislation designed to protect workers in their efforts to organize and bargain collectively, the Court reconsidered the scope of an employer’s liberty of contract, and recognized a correlative liberty of employees that state legislatures could protect.

To the extent that it acknowledged that liberty of the individual may be infringed by the coercive conduct of private individuals no less than by 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 Working Conditions and Wages.—As noted, even during the Lochner era, the Due Process Clause was construed as permitting enactment by the states of maximum hours laws applicable to women workers¹⁰⁴ and to all workers in specified lines of work thought to be physically demanding or otherwise worthy of special protection.¹⁰⁵ Similarly, the regulation of how wages were to be paid was allowed, including the form of payment,¹⁰⁶ its frequency,¹⁰⁷ and how such payment was to be calculated.¹⁰⁸ And, 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.¹⁰⁹ Further, states could prohibit the employment of persons under 16 years of age in dangerous occupations and require employers to ascertain whether their employees were in fact below that age.¹¹⁰

The regulation of mines represented a further exception to the Lochner era’s anti-discrimination tally. As such health and safety regulation was clearly within a state’s police power, a state’s laws providing for mining inspectors (paid for by mine owners),¹¹¹ licensing mine managers and mine examiners, and imposing liability upon mine owners for failure to furnish a reasonably safe place for workmen, were upheld during this period.¹¹² Other similar regulations that were sustained included laws requiring that underground passageways meet or exceed a minimum width,¹¹³ that boundary pillars be installed between adjoining coal properties as a protection against flood in case of abandonment,¹¹⁴ and that wash houses be provided for employees.¹¹⁵

One of the more significant negative holdings of the Lochner era was that states could not regulate how much wages were to be paid to employees.¹¹⁶ As with the other working condition and wage issues, however, concern for the welfare of women and children seemed to weigh heavily on the justices, and restrictions on minimum wages for these groups were discarded in 1937.¹¹⁷ Ultimately, the reasoning of these cases was extended to more broadly based minimum wage laws, as the Court began to offer significant deference to the states to enact economic and social legislation benefitting labor.

The modern theory regarding substantive due process and wage regulation was explained by Justice Douglas in 1952 in the following terms: “Our recent decisions make plain that we do not sit as a super-legislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare. The legislative power has limits. . . . But the state legislatures have constitutional authority to experiment with new techniques; they are entitled to their own standard of the public welfare; they may within extremely broad limits control practices in the business-labor field, so long as specific constitutional prohibitions are not violated and so long as conflicts with valid and controlling federal laws are avoided.”¹¹⁸

The Justice further noted that “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.”¹¹⁹

Workers’ Compensation Laws.—Workers’ compensation laws also evaded the ravages of Lochner. The 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.”¹²⁰ Accordingly, a state statute that provided an exclusive system to govern the liabilities of employers for disabling injuries and death caused by accident in certain hazardous occupations,¹²¹ irrespective of the doctrines of negligence, contributory negligence, assumption of risk, and negligence of fellow-servants, was held not to violate due process.¹²² Likewise, an act that allowed an injured employee, though guilty of contributory negligence, an election of remedies between restricted recovery under a compensation law or full compensatory damages under the Employers’ Liability Act, did not deprive an employer of his property without due process of law.¹²³ A variety of other statutory schemes have also been upheld.¹²⁴

Even the imposition upon coal mine operators of the liability of compensating former employees who terminated work in the industry before passage of the law for black lung disabilities 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.¹²⁵ 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. Consequently, legislation imposing liability on the basis of deterrence or of blameworthiness might not have passed muster.

Collective Bargaining.—During the Lochner era, liberty of con-subject Adair-Coppage doctrine,¹²⁶ was used to strike down legislation calculated to enhance the bargaining capacity of workers as against that already possessed by their employers.¹²⁷ The Court did, however, on occasion sustain measures affecting the employment relationship, such as a statute requiring every corporation to furnish a departing employee a letter setting forth the nature and duration of the employee’s service and the true cause for leaving.¹²⁸ In Senn v. Tile Layers Union,¹²⁹ however, the Court began to show a greater willingness to defer to legislative judgment as to the wisdom and need of such enactments.

The significance of Senn¹³⁰ was, in part, that the case upheld a statute that was not appreciably different from a statute voided five years earlier in Truax v. Corrigan.¹³¹ In Truax, the Court had found that a statute forbidding injunctions on labor protest activities was unconstitutional as applied to a labor dispute involving picketing, libelous statements, and threats. The statute that the Court subsequently upheld in Senn, by contrast, authorized publicizing labor disputes, declared peaceful picketing and patrolling lawful, and prohibited the granting of injunctions against such conduct.¹³² The difference between these statutes, according to the Court, was that the law in Senn applied to “peaceful” picketing only, whereas the law in Truax “was . . . applied to legalize conduct which was not simply peaceful picketing.” Because 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.

Years later, after regulations protective of labor allowed unions to amass enormous economic power, many state legislatures attempted to control the abuse of this power, and the Court’s new-found deference to state labor regulation was also applied to restrictions on unions. Thus, the Court upheld state prohibitions on racial discrimination by unions, rejecting claims that the measure interfered unlawfully with the union’s right to choose its members, abridged its property rights, or violated its liberty of contract. Because 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.¹³³

Similarly, state laws outlawing closed shops were upheld in Lincoln Federal Labor Union v. Northwestern Iron & Metal Company¹³⁴ and AFL v. American Sash & Door Co.¹³⁵ When labor unions attempted to invoke freedom of contract, 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.”¹³⁶

And, in UAW v. WERB,¹³⁷ the Court upheld the Wisconsin Employment Peace Act, which had been used to proscribe unfair labor practices by a union. In UAW, the union, acting after collective bargaining negotiations had become deadlocked, had attempted to coerce an employer through calling frequent, irregular, and unannounced union meetings during working hours, resulting in a slowdown in production. “No one,” declared the Court, can question “the State’s power to police coercion by . . . methods” that involve “considerable injury to property and intimidation of other employees by threats.”¹³⁸

In examining whether the Due Process Clause allows the regulation of business prices, the Supreme Court, almost from the inception of the Fourteenth Amendment, has devoted itself to the examination of two questions: (1) whether the clause restricted such regulation to certain types of business, and (2) the nature of the regulation allowed as to those businesses.

Types of Businesses That May be Regulated.—For a brief interval following the ratification of the Fourteenth Amendment, the Supreme Court found the Due Process Clause to impose no substantive restraint on the power of states to fix rates chargeable by any industry. Thus, in Munn v. Illinois,¹³⁹ the first of the “Granger Cases,” maximum charges established by a state 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.¹⁴⁰ The Court, in an opinion that was largely dictum, declared that the Due Process Clause did not operate as a safeguard against oppressive rates, and that, if regulation was permissible, the severity of it 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, and by 1890¹⁴¹ it had fully converted the Due Process Clause into a restriction on the power of state agencies to impose rates that, in a judge’s estimation, were arbitrary or unreasonable. This state of affairs continued for more than fifty years.

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, the phrase, “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 that 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:¹⁴² “(1) Those [businesses] which are carried on under the authority of a public grant of privileges which either expressly or impliedly imposes the affirmative duty of rendering a public service demanded by any member of the public. Such are the railroads, other common carriers and public utilities. (2) Certain occupations, regarded as exceptional, the public interest attaching to which, recognized from earliest times, has survived the period of arbitrary laws by Parliament or Colonial legislatures for regulating all trades and callings. Such are those of the keepers of inns, cabs and grist mills. (3) Businesses which though not public at their inception may be fairly said to have risen to be such and have become subject in consequence to some government regulation. They have come to hold such a peculiar relation to the public that this is superimposed upon them. In the language of the cases, the owner by devoting his business to the public use, in effect grants the public an interest in that use and subjects himself to public regulation to the extent of that interest although the property continues to belong to its private owner and to be entitled to protection accordingly.”

Through application of this formula, the Court sustained state laws regulating charges made by grain elevators,¹⁴³ stockyards,¹⁴⁴ and tobacco warehouses,¹⁴⁵ as well as fire insurance rates¹⁴⁶ and commissions paid to fire insurance agents.¹⁴⁷ The Court also voided statutes regulating business not “affected with a public interest,” including state statutes fixing the price at which gasoline may be sold,¹⁴⁸ regulating the prices for which ticket brokers may resell theater tickets,¹⁴⁹ and limiting competition in the manufacture and sale of ice through the withholding of licenses to engage in such business.¹⁵⁰

In the 1934 case of Nebbia v. New York,¹⁵¹ however, the Court finally shelved the concept of “a business affected with a public interest,”¹⁵² upholding, by a vote of fivetofour, a depression-induced New York statute fixing fluid milk prices. “Price control, like any other form of regulation, is 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.”¹⁵³ 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 is to be viewed merely as an exercise by the government of its police power, and as such is subject only to the restrictions that due process imposes on arbitrary interference with liberty and property. “The due process clause makes no mention of sales or of prices. . . .”¹⁵⁴

Having thus concluded that it is no longer the nature of the business that determines the validity of a price regulation, the Court had little difficulty in upholding a state law prescribing the maximum commission that private employment agencies may charge. Rejecting contentions that the need for such protective legislation had not been shown, the Court, in Olsen v. Nebraska ex rel. Western Reference and Bond Ass’n¹⁵⁵ 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.¹⁵⁶

Substantive Review of Price Controls.—Ironically, private businesses, once they had been found subject to price regulation, seemed to have less protection than public entities. Thus, unlike operators of public utilities who, in return for a government grant of virtually monopolistic privileges must provide continuous service, proprietors of other businesses receive no similar special advantages and accordingly are unrestricted in their right to liquidate and close. Owners of ordinary businesses, therefore, are at liberty to escape the consequences of publicly imposed charges by dissolution, and have been found less in need of protection through judicial review. Thus, case law upholding challenges to price controls deals predominantly with governmentally imposed rates and charges for public utilities.

In 1886, Chief Justice Waite, in the Railroad Commission Cases,¹⁵⁷ warned that the “power to regulate is not a power to destroy, and . . . the State cannot . . . do that which in law amounts to a taking of property for public use without just compensation, or without due process of law.” In other words, a confiscatory rate could not be imposed by government on a regulated entity. By treating “due process of law” and “just compensation” as equivalents,¹⁵⁸ the Court was in effect asserting that the imposition of a rate so low as to damage or diminish private property ceased to be an exercise of a state’s police power and became one of eminent domain. Nevertheless, even this doctrine proved inadequate to satisfy public utilities, as it allowed courts to intervene only to prevent imposition of a confiscatory rate, i. e. , a rate so low as to be productive of a loss and to amount to taking of property without just compensation. The utilities sought nothing less than a judicial acknowledgment that courts could review the “reasonableness” of legislative rates.

Although as late as 1888 the Court doubted that it possessed the requisite power to challenge this doctrine,¹⁵⁹ it finally acceded to the wishes of the utilities in 1890 in Chicago, M. & St. P. Railway v. Minnesota.¹⁶⁰ In this case, the Court ruled that “[t]he question of the reasonableness of a rate . . . , involving as it does the element of reasonableness both as regards the company and as regards the public, is eminently a question for judicial investigation, requiring due process of law for its determination. If the company is deprived of the power of charging reasonable rates for the use of its property, and such deprivation takes place in the absence of an investigation by judicial machinery, it is deprived of the lawful use of its property, and thus, in substance and effect, of the property itself, without due process of law. . . .”

Although the Court made a last-ditch attempt to limit the ruling of Chicago, M. & St. P. Railway v. Minnesota to rates fixed by a commission as opposed to rates imposed by a legislature,¹⁶¹ the Court in Reagan v. Farmers’ Loan & Trust Co.¹⁶² finally removed all lingering doubts over the scope of judicial intervention. In Reagan, the Court declared that, “if a carrier . . . attempted to charge a shipper an unreasonable sum,” the Court, in accordance with common law principles, would pass on the reasonableness of its rates, and has “jurisdiction . . . to award the shipper any amount exacted . . . in excess of a reasonable rate . . . . The province of the courts is not changed, nor the limit of judicial inquiry altered, because the legislature instead of the carrier prescribes the rates.”¹⁶³ Reiterating virtually the same principle in Smyth v. Ames,¹⁶⁴ the Court not only obliterated the distinction between confiscatory and unreasonable rates but contributed the additional observation that the requirements of due process are not met unless a court further determines whether the rate permits the utility to earn a fair return on a fair valuation of its investment.

Early Limitations on Review.—Even while reviewing the reasonableness of rates, the Court recognized some limits on judicial review. As early as 1894, the Court asserted that “[t]he courts are not authorized to revise or change the body of rates imposed by a legislature or a commission; they do not determine whether one rate is preferable to another, or what under all circumstances would be fair and reasonable as between the carriers and the shippers; they do not engage in any mere administrative work; but still there can be no doubt of their power and duty to inquire whether a body of rates . . . is unjust and unreasonable, . . . and if found so to be, to restrain its operation.”¹⁶⁵ One can also infer from these early holdings a distinction between unreviewable fact questions that relate only to the wisdom or expediency of a rate order, and reviewable factual determinations that bear on a commission’s power to act.¹⁶⁶

Further, the Court placed various obstacles in the path of the complaining litigant. Thus, not only must a person challenging a rate assume the burden of proof,¹⁶⁷ but he must present a case of “manifest constitutional invalidity.”¹⁶⁸ And, if, notwithstanding this effort, the question of confiscation remains in doubt, no relief will be granted.¹⁶⁹ Moreover, even the Court was inclined to withhold judgment on the application of a rate until its practical effect could be surmised.¹⁷⁰

In the course of time this distinction solidified. Thus, the Court initially adopted the position that it would not disturb findings of fact insofar as such findings were supported by substantial evidence. For instance, in San Diego Land Company v. National City,¹⁷¹ the Court declared that “the courts cannot, after [a legislative body] has fairly and fully investigated and acted, by fixing what it believes to be reasonable rates, step in and say its action shall be set aside and nullified because the courts, upon a similar investigation, have come to a different conclusion as to the reasonableness of the rates fixed. . . . [J]udicial interference should never occur unless the case presents, clearly and beyond all doubt, such a fla-grant attack upon the rights of property under the guise of regulations as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for the public use.” And, later, in a similar case,¹⁷² the Court expressed even more clearly its reluctance to reexamine ordinary factual determinations, writing, “we do not feel bound to reexamine and weigh all the evidence . . . or to proceed according to our independent opinion as to what were proper rates. It is enough if we cannot say that it was impossible for a fair-minded board to come to the result which was reached.”¹⁷³

These standards of review were, however, abruptly rejected by the Court in Ohio Valley Water Co. v. Ben Avon Borough¹⁷⁴ as being no longer sufficient to satisfy the requirements of due process, ushering in a long period during which courts substantively evaluated the reasonableness of rate settings. The U. S. Supreme Court in Ben Avon concluded that the Pennsylvania “Supreme Court interpreted the statute as withholding from the courts power to determine the question of confiscation according to their own independent judgment . . . .”¹⁷⁵ Largely on the strength of this interpretation of the applicable state statute, the Court held that, when the order of a legislature, or of a commission, prescribing a schedule of maximum future rates is challenged as confiscatory, “the State must provide a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and facts; otherwise the order is void because in conflict with the due process clause, Fourteenth Amendment.”¹⁷⁶

History of the Valuation Question.—For almost fifty years the Court wandered through a maze of conflicting formulas and factors for valuing public service corporation property, including “fair value,”¹⁷⁷ “reproduction cost,”¹⁷⁸ “prudent investment,”¹⁷⁹ “depreciation,”¹⁸⁰ “going concern value and good will,”¹⁸¹ “salvage value,”¹⁸² and “past losses and gains,”¹⁸³ only to emerge from this maze in 1944 at a point not very far removed from Munn v. Illinois and its deference to rate-making authorities.¹⁸⁴ By holding in FPC v. Natural Gas Pipeline Co.¹⁸⁵ that “[t]he Constitution does not bind rate-making bodies to the service of any single formula or combination of formulas,” and in FPC v. Hope Natural Gas Co.¹⁸⁶ that “it is the result reached not the method employed which is controlling, . . . [that] [i]t is not the theory but the impact of the rate order which counts, [and that] [i]f the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end,” the Court, in effect, abdicated from the position assumed in the Ben Avon case.¹⁸⁷ Without surrendering the judicial power to declare rates unconstitutional on the basis of a substantive deprivation of due process,¹⁸⁸ the Court announced that it would not overturn a result it deemed to be just simply because “the method employed [by a commission] to reach that result may contain infirmities. . . . [A] Commission’s order does not become suspect by reason of the fact that it is challenged. It is the product of expert judgment which carries a presumption of validity. And he who would upset the rate order . . . carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences.”¹⁸⁹

In dispensing with the necessity of observing the old formulas for rate computation, the Court did not articulate any substitute guidance for ascertaining whether a so-called end result is unreasonable. It did intimate that rate-making “involves a balancing of the investor and consumer interests,” which does not, however, “ ‘insure that the business shall produce net revenues.’ . . . From the investor or company point of view it is important that there be enough revenue not only for operating expenses but also for the capital costs of the business. These include service on the debt and dividends on the stock. . . . By that standard the return to the equity owner should be commensurate with returns on investments in other enterprises having corresponding risks. That return, moreover, should be sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital.”¹⁹⁰

In General.—Because of the nature of the business they carry on and the public’s interest in it, public utilities and common carriers are subject to state regulation, whether exerted directly by legislatures or under authority delegated to administrative bodies.¹⁹¹ But because the property of these entities remains under the full protection of the Constitution, it follows that due process is violated when the state regulates in a manner that infringes the right of ownership in what the Court considers to be an “arbitrary” or “unreasonable” way.¹⁹² Thus, when a street railway company lost its franchise, the city could not simply take possession of its equipment,¹⁹³ although it could subject the company to the alternative of accepting an inadequate price for its property or of ceasing operations and removing its property from the streets.¹⁹⁴ Likewise, a city wanting to establish a lighting system of its own may not remove, without compensation, the fixtures of a lighting company already occupying the streets under a franchise,¹⁹⁵ although a city may compete with a company that has no exclusive charter.¹⁹⁶ However, a municipal ordinance that demanded, as a condition for placing poles and conduits in city streets, that a telegraph company carry the city’s wires free of charge, and that required that conduits be moved at company expense, was constitutional.¹⁹⁷

And, the fact that a state, by mere legislative or administrative fiat, cannot convert a private carrier into a common carrier will not protect a foreign corporation that has elected to enter a state that requires that it operate its local private pipe line as a common carrier. Such a foreign corporation is viewed as having waived its constitutional right to be secure against the imposition of conditions that amount to a taking of property without due process of law.¹⁹⁸

Compulsory Expenditures: Grade Crossings, and the Like.— Generally, the enforcement of uncompensated obedience to a regulation for the public health and safety is not an unconstitutional taking of property in violation of due process.¹⁹⁹ Thus, where a water company laid its lines on an ungraded street, and the applicable rule at the time of the granting of its charter compelled the company to furnish connections at its own expense to one residing on such a street, due process is not violated.²⁰⁰ Or, where a gas company laid its pipes under city streets, it may validly be obligated to assume the cost of moving them to accommodate a municipal drainage system.²⁰¹ Or, railroads may be required to help fund the elimination of grade crossings, even though commercial highway users, who make no contribution whatsoever, benefit from such improvements.

Although the power of the state in this respect is not unlimited, and an “arbitrary” and “unreasonable” imposition on these businesses may be set aside, the Court’s modern approach to substantive due process analysis makes this possibility far less likely than it once was. For instance, a 1935 case invalidated a requirement that railroads share 50% of the cost of grade separation, irrespective of the value of such improvements to the railroad, suggesting that railroads could not be required to subsidize competitive transportation modes.²⁰² But in 1953 the Court distinguished this case, ruling that the costs of grade separation improvements need not be allocated solely on the basis of benefits that would accrue to railroad property.²⁰³ Although the Court cautioned that “allocation of costs must be fair and reasonable,” it was deferential to local governmental decisions, stating that, in the exercise of the police power to meet transportation, safety, and convenience needs of a growing community, “the cost of such improvements may be allocated all to the railroads.”²⁰⁴

Compellable Services.—A state may require that common carriers such as railroads provide services in a manner suitable for the convenience of the communities they serve.²⁰⁵ Similarly, a primary duty of a public utility is to serve all those who desire the service it renders, and so it follows that a company cannot pick and choose to serve only those portions of its territory that it finds most profitable. Therefore, compelling a gas company to continue serving specified cities as long as it continues to do business in other parts of the state does not constitute an unconstitutional deprivation.²⁰⁶ Likewise, requiring a railway to continue the service of a branch or part of a line is acceptable, even if that portion of the operation is an economic drain.²⁰⁷ A company, however, cannot be compelled to operate its franchise at a loss, but must be at liberty to surrender it and discontinue operations.²⁰⁸

As the standard for regulation of a utility is whether a particular directive is reasonable, the question of whether a state order requiring the provision of services is reasonable could include a consideration of the likelihood of pecuniary loss, the nature, extent and productiveness of the carrier’s intrastate business, the character of the service required, the public need for it, and its effect upon service already being rendered.²⁰⁹ An example of the kind of regulation where the issue of reasonableness would require an evaluation of numerous practical and economic factors is one that requires railroads to lay tracks and otherwise provide the required equipment to facilitate the connection of separate track lines.²¹⁰

Generally, regulation of a utility’s service to commercial customers attracts less scrutiny²¹¹ than do regulations intended to facilitate the operations of a competitor,²¹² and governmental power to regulate in the interest of safety has long been conceded.²¹³ Requirements for service having no substantial relation to a utility’s regulated function, however, have been voided, such as requiring railroads to maintain scales to facilitate trading in cattle, or prohibiting letting down an unoccupied upper berth on a rail car while the lower berth was occupied.²¹⁴

Imposition of Statutory Liabilities and Penalties Upon Common Carriers.—Legislators have considerable latitude to impose legal burdens upon common carriers, as long as the carriers are not precluded from shifting such burdens. Thus, a statute may make an initial rail carrier,²¹⁵ or the connecting or delivering carrier,²¹⁶ liable to the shipper for the nondelivery of goods which results from the fault of another, as long as the carrier has a subrogated right to proceed against the carrier at fault. Similarly, a railroad may be held responsible for damages to the owner of property injured by fire caused by locomotive engines, as the statute also granted the railroad an insurable interest in such property along its route, allowing the railroad to procure insurance against such liability.²¹⁷ Equally consistent with the requirements of due process are enactments imposing on all common carriers a penalty for failure to settle claims for freight lost or damaged in shipment within a reasonable specified period.²¹⁸

The Court has, however, established some limits on the imposition of penalties on common carriers. During the Lochner era, the Court invalidated an award of $500 in liquidated damages plus reasonable attorney’s fees imposed on a carrier that had collected transportation charges in excess of established maximum rates as disproportionate. The Court also noted that the penalty was exacted under conditions not affording the carrier an adequate opportunity to test the constitutionality of the rates before liability attached.²¹⁹ Where the carrier did have an opportunity to challenge the reasonableness of the rate, however, the Court indicated that the validity of the penalty imposed need not be determined by comparison with the amount of the overcharge. Inasmuch as a penalty is imposed as punishment for violation of law, the legislature may adjust its amount to the public wrong rather than the private injury, and the only limitation which the Fourteenth Amendment imposes is that the penalty prescribed shall not be “so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable.”²²⁰

Generally.—States may impose significant regulations on businesses without violating due process. “The Constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases. Certain kinds of business may be prohibited; and the right to conduct a business, or to pursue a calling, may be conditioned. . . . Statutes prescribing the terms upon which those conducting certain businesses may contract, or imposing terms if they do enter into agreements, are within the State’s competency.”²²¹ Still, the fact that the state reserves the power to amend or repeal corporate charters does not support the taking of corporate property without due process of law, as termination of the corporate structure merely results in turning over corporate property to the stockholders after liquidation.²²²

Foreign (outofstate) corporations also enjoy protection under the Due Process Clauses, but this does not grant them an unconditional right to enter another state or to continue to do business in it. Language in some early cases suggested that states had plenary power to exclude or to expel a foreign corporation.²²³ This power is clearly limited by the modern doctrine of the “negative” commerce clause, which constrains states’ authority to discriminate against foreign corporations in favor of local commerce. Still, it has always been acknowledged that states may subject corporate entry or continued operation to reasonable, nondiscriminatory conditions. Thus, for instance, a state law that requires the filing of articles with a local official as a prerequisite to the validity of conveyances of local realty to such corporations does not violate due process.²²⁴ In addition, statutes that require a foreign insurance company to maintain reserves computed by a specific percentage of premiums (including membership fees) received in all states,²²⁵ or to consent to direct actions filed against it by persons injured in the host state, are valid.²²⁶

Laws Prohibiting Trusts, Restraint of Trade or Fraud.— Even during the period when the Court was invalidating statutes under liberty of contract principles, it recognized the right of states to prohibit combinations in restraint of trade.²²⁷ Thus, states could prohibit agreements to pool and fix prices, divide net earnings, and prevent competition in the purchase and sale of grain.²²⁸ Further, the Court held that the Fourteenth Amendment does not preclude a state from adopting a policy prohibiting competing corporations from combinations, even when such combinations were induced by good intentions and from which benefit and no injury have resulted.²²⁹ The Court also upheld a variety of statutes prohibiting activities taken by individual businesses intended to harm competitors²³⁰ or restrain the trade of others.²³¹

Laws and ordinances tending to prevent frauds by requiring honest weights and measures in the sale of articles of general consumption have long been considered lawful exertions of the police power.²³² Thus, a prohibition on the issuance or sale by other than an authorized weigher of any weight certificate for grain weighed at any warehouse or elevator where state weighers are stationed is not unconstitutional.²³³ Similarly, the power of a state to prescribe standard containers to protect buyers from deception as well as to facilitate trading and to preserve the condition of the merchandise is not open to question.²³⁴

A variety of other business regulations that tend to prevent fraud have withstood constitutional scrutiny. Thus, a state may require that the nature of a product be fairly set forth, despite the right of a manufacturer to maintain secrecy as to his compounds.²³⁵ Or, a statute providing that the purchaser of harvesting or threshing machinery for his own use shall have a reasonable time after delivery for inspecting and testing it, and may rescind the contract if the machinery does not prove reasonably adequate, does not violate the Due Process Clause.²³⁶ Further, in the exercise of its power to prevent fraud and imposition, a state may regulate trading in securities within its borders, require a license of those engaging in such dealing, make issuance of a license dependent on the good repute of the applicants, and permit, subject to judicial review of his findings, revocation of the license.²³⁷

The power to regulate also includes the power to forbid certain business practices. Thus, a state may forbid the giving of options to sell or buy any grain or other commodity at a future time.²³⁸ It may also forbid sales on margin for future delivery,²³⁹ and may prohibit the keeping of places where stocks, grain, and the like, are sold but not paid for at the time, unless a record of the same be made and a stamp tax paid.²⁴⁰ A prohibitive license fee upon the use of trading stamps is not unconstitutional,²⁴¹ nor is imposing criminal penalties for any deductions by purchasers from the actual weight of grain, hay, seed, or coal purchased, even when such deduction is made under a claim of custom or under a rule of a board of trade.²⁴²

Banking, Wage Assignments, and Garnishment.—Regulation of banks and banking has always been considered well within the police power of states, and the Fourteenth Amendment did not eliminate this regulatory authority.²⁴³ A variety of regulations have been upheld over the years. For example, state banks are not deprived of property without due process by a statute subjecting them to assessments for a depositors’ guaranty fund.²⁴⁴ Also, a law requiring savings banks to turn over deposits inactive for thirty years to the state (when the depositor cannot be found), with provision for payment to the depositor or his heirs on establishment of the right, does not effect an invalid taking of the property of said banks; nor does a statute requiring banks to turn over to the protective custody of the state deposits that, depending on the nature of the deposit, have been inactive ten or twenty-five years.²⁴⁵

A state is acting clearly within its police power in fixing maximum rates of interest on money loaned within its border, and such regulation is within legislative discretion if not unreasonable or arbitrary.²⁴⁶ Equally valid is a requirement that assignments of future wages as security for debts of less than $200, to be valid, must be accepted in writing by the employer, consented to by the assignors, and filed in public office. Such a requirement deprives neither the borrower nor the lender of his property without due process of law.²⁴⁷

Insurance.—Those engaged in the insurance business²⁴⁸ as well as the business itself have been peculiarly subject to supervision and control.²⁴⁹ Even during the Lochner era the Court recognized that government may fix insurance rates and regulate the compensation of insurance agents,²⁵⁰ and over the years the Court has upheld a wide variety of regulation. For instance, a state may impose a fine on “any person ‘who shall act in any manner in the negotiation or transaction of unlawful insurance . . . with a foreign insurance company not admitted to do business [within said State].’”²⁵¹ Or, a state may forbid life insurance companies and their agents to engage in the undertaking business and undertakers to serve as life insurance agents.²⁵² Further, foreign casualty and surety insurers were not deprived of due process by a Virginia law that prohibited the making of contracts of casualty or surety insurance except through registered agents, that required that such contracts applicable to persons or property in the state be countersigned by a registered local agent, and that prohibited such agents from sharing more than 50% of a commission with a nonresident broker.²⁵³ And just as all banks may be required to contribute to a depositors’ guaranty fund, so may automobile liability insurers be required to submit to the equitable apportionment among them of applicants who are in good faith entitled to, but are financially unable to, procure such insurance through ordinary methods.²⁵⁴

However, the Court has discerned some limitations to such regulations. A statute that prohibited the insured from contracting directly with a marine insurance company outside the state for coverage of property within the state was held invalid as a deprivation of liberty without due process of law.²⁵⁵ For the same reason, the Court held, a state may not prevent a citizen from concluding a policy loan agreement with a foreign life insurance company at its home office whereby the policy on his life is pledged as collateral security for a cash loan to become due upon default in payment of premiums, in which case the entire policy reserve might be applied to discharge the indebtedness. Authority to subject such an agreement to the conflicting provisions of domestic law is not deducible from the power of a state to license a foreign insurance company as a condition of its doing business therein.²⁵⁶

A stipulation that policies of hail insurance shall take effect and become binding twenty-four hours after the hour in which an application is taken and further requiring notice by telegram of rejection of an application was upheld.²⁵⁷ No unconstitutional restraint was imposed upon the liberty of contract of surety companies by a statute providing that, after enactment, any bond executed for the faithful performance of a building contract shall inure to the benefit of material men and laborers, notwithstanding any provision of the bond to the contrary.²⁵⁸ Likewise constitutional was a law requiring that a motor vehicle liability policy shall provide that bankruptcy of the insured does not release the insurer from liability to an injured person.²⁵⁹ There also is no denial of due process for a state to require that casualty companies, in case of total loss, pay the total amount for which the property was insured, less depreciation between the time of issuing the policy and the time of the loss, rather than the actual cash value of the property at the time of loss.²⁶⁰

Moreover, even though it had its attorney-in-fact located in Illinois, signed all its contracts there, and forwarded from there all checks in payment of losses, a reciprocal insurance association covering real property located in New York could be compelled to comply with New York regulations that required maintenance of an office in that state and the countersigning of policies by an agent resident therein.²⁶¹ Also, to discourage monopolies and to encourage rate competition, a state constitutionally may impose on all fire insurance companies connected with a tariff association fixing rates a liability or penalty to be collected by the insured of 25% in excess of actual loss or damage, stipulations in the insurance contract to the contrary notwithstanding.²⁶²

A state statute by which a life insurance company, if it fails to pay upon demand the amount due under a policy after death of the insured, is made liable in addition for fixed damages, reasonable in amount, and for a reasonable attorney’s fee is not unconstitutional even though payment is resisted in good faith and upon reasonable grounds.²⁶³ It is also proper by law to cut off a defense by a life insurance company based on false and fraudulent statements in the application, unless the matter misrepresented actually contributed to the death of the insured.²⁶⁴ A provision that suicide, unless contemplated when the application for a policy was made, shall be no defense is equally valid.²⁶⁵ When a cooperative life insurance association is reorganized so as to permit it to do a life insurance business of every kind, policyholders are not deprived of their property without due process of law.²⁶⁶ Similarly, when the method of liquidation provided by a plan of rehabilitation of a mutual life insurance company is as favorable to dissenting policyholders as would have been the sale of assets and pro rata distribution to all creditors, the dissenters are unable to show any taking without due process. Dissenting policyholders have no constitutional right to a particular form of remedy.²⁶⁷

Miscellaneous Businesses and Professions.—The practice of medicine, using this word in its most general sense, has long been the subject of regulation.²⁶⁸ A state may exclude osteopathic physicians from hospitals maintained by it or its municipalities²⁶⁹ and may regulate the practice of dentistry by prescribing qualifications that are reasonably necessary, requiring licenses, establishing a supervisory administrative board, or prohibiting certain advertising regardless of its truthfulness.²⁷⁰ The Court has sustained a law establishing as a qualification for obtaining or retaining a pharmacy operating permit that one either be a registered pharmacist in good standing or that the corporation or association have a majority of its stock owned by registered pharmacists in good standing who were actively and regularly employed in and responsible for the management, supervision, and operation of such pharmacy.²⁷¹

Although statutes requiring pilots to be licensed²⁷² and setting reasonable competency standards (e. g., that railroad engineers pass color blindness tests) have been sustained,²⁷³ an act making it a misdemeanor for a person to act as a railway passenger conductor without having had two years’ experience as a freight conductor or brakeman was invalidated as not rationally distinguishing between those competent and those not competent to serve as conductor.²⁷⁴ An act imposing license fees for operating employment agencies and prohibiting them from sending applicants to an employer who has not applied for labor does not deny due process of law.²⁷⁵ Also, a state law prohibiting operation of a “debt pooling” or a “debt adjustment” business except as an incident to the legitimate practice of law is a valid exercise of legislative discretion.²⁷⁶

The Court has also upheld a variety of other licensing or regulatory legislation applicable to places of amusement,²⁷⁷ grain elevators,²⁷⁸ detective agencies,²⁷⁹ the sale of cigarettes²⁸⁰ or cosmetics,²⁸¹ and the resale of theater tickets.²⁸² Restrictions on advertising have also been upheld, including absolute bans on the advertising of cigarettes²⁸³ or the use of a representation of the United States flag on an advertising medium.²⁸⁴ Similarly constitutional were prohibitions on the solicitation by a layman of the business of collecting and adjusting claims,²⁸⁵ the keeping of private markets within six squares of a public market,²⁸⁶ the keeping of billiard halls except in hotels,²⁸⁷ or the purchase by junk dealers of wire, copper, and other items, without ascertaining the seller’s right to sell.²⁸⁸

Oil and Gas.—A state may prohibit conduct that leads to the waste of natural resources.²⁸⁹ Thus, for instance, where there is a limited market for natural gas acquired attendant to oil production or where the pumping of oil and gas from one location may limit the ability of others to recover oil from a large reserve, a state may require that production of oil be limited or prorated among producers.²⁹⁰ Generally, whether a system of proration is fair is a question for administrative and not judicial judgment.²⁹¹ On the other hand, where the evidence showed that an order prorating allowed production among several wells was actually intended to compel pipeline owners to furnish a market to those who had no pipeline connections, the order was held void as a taking of private property for private benefit.²⁹²

A state may act to conserve resources even if it works to the economic detriment of the producer. Thus, a state may forbid certain uses of natural gas, such as the production of carbon black, where the gas is burned without fully using the heat therein for other manufacturing or domestic purposes. Such regulations were sustained even where the carbon black was more valuable than the gas from which it was extracted, and notwithstanding the fact that the producer had made significant investment in a plant for the manufacture of carbon black.²⁹³ Likewise, for the purpose of regulating and adjusting coexisting rights of surface owners to underlying oil and gas, it is within the power of a state to prohibit the operators of wells from allowing natural gas, not conveniently necessary for other purposes, to come to the surface unless its lifting power was used to produce the greatest proportional quantity of oil.²⁹⁴

Protection of Property and Agricultural Crops.—Special precautions may be required to avoid or compensate for harm caused by extraction of natural resources. Thus, a state may require the filing of a bond to secure payment for damages to any persons or property resulting from an oil and gas drilling or production operation.²⁹⁵ On the other hand, in Pennsylvania Coal Co. v. Mahon,²⁹⁶ a Pennsylvania statute that forbade the mining of coal under private dwellings or streets of cities by a grantor that had reserved the right to mine was viewed as too restrictive on the use of private property and hence a denial of due process and a “taking” without compensation.²⁹⁷ Years later, however, a quite similar Pennsylvania statute was upheld, the Court finding that the new law no longer involved merely a balancing of private economic interests, but instead promoted such “important public interests” as conservation, protection of water supplies, and preservation of land values for taxation.²⁹⁸

A statute requiring the destruction of cedar trees within two miles of apple orchards in order to prevent damage to the orchards caused by cedar rust was upheld as not unreasonable even in the absence of compensation. Apple growing being one of the principal agricultural pursuits in Virginia and the value of cedar trees throughout the state being small as compared with that of apple orchards, the state was constitutionally competent to require the destruction of one class of property in order to save another which, in the judgment of its legislature, was of greater value to the public.²⁹⁹ Similarly, Florida was held to possess constitutional authority to protect the reputation of one of its major industries by penalizing the delivery for shipment in interstate commerce of citrus fruits so immature as to be unfit for consumption.³⁰⁰

Water, Fish, and Game.—A statute making it unlawful for a riparian owner to divert water into another state was held not to deprive the property owner of due process. “The constitutional power of the State to insist that its natural advantages shall remain unimpaired by its citizens is not dependent upon any nice estimate of the extent of present use or speculation as to future needs. . . . What it has it may keep and give no one a reason for its will.”³⁰¹ This holding has since been disapproved, but on interstate commerce rather than due process grounds.³⁰² States may, however, enact and enforce a variety of conservation measures for the protection of watersheds.³⁰³

Similarly, a state has sufficient control over fish and wild game found within its boundaries³⁰⁴ so that it may regulate or prohibit fishing and hunting.³⁰⁵ For the effective enforcement of such restrictions, a state may also forbid the possession within its borders of special instruments of violations, such as nets, traps, and seines, regardless of the time of acquisition or the protestations of lawful intentions on the part of a particular possessor.³⁰⁶ The Court has also upheld a state law restricting a commercial reduction plant from accepting more fish than it could process without spoilage in order to conserve fish found within its waters, even allowing the application of such restriction to fish imported into the state from adjacent international waters.³⁰⁷

The Court’s early decisions rested on the legal fiction that the states owned the fish and wild game within their borders, and thus could reserve these possessions for use by their own citizens.³⁰⁸ The Court soon backed away from the ownership fiction,³⁰⁹ and in Hughes v. Oklahoma³¹⁰ it formally overruled prior case law, indicating that state conservation measures discriminating against outofstate persons were to be measured under the Commerce Clause. Although a state’s “concerns for conservation and protection of wild animals” were still a “legitimate” basis for regulation, these concerns could not justify disproportionate burdens on interstate commerce.³¹¹

Subsequently, in the context of recreational rather than commercial activity, the Court reached a result more deferential to state authority, holding that access to recreational big game hunting is not within the category of rights protected by the Privileges or Immunities Clause, and that consequently a state could charge outofstaters significantly more than instaters for a hunting license.³¹² Suffice it to say that similar cases involving a state’s efforts to reserve its fish and game for its own inhabitants are likely to be challenged under commerce or privileges or immunities principles, rather than under substantive due process.

Zoning and Similar Actions.—It is now well established that states and municipalities have the police power to zone land for designated uses. Zoning authority gained judicial recognition early in the 20th century. Initially, an analogy was drawn to public nuisance law, so that states and their municipal subdivisions could declare that specific businesses, although not nuisances per se, were nuisances in fact and in law in particular circumstances and in particular localities.³¹³ Thus, a state could declare the emission of dense smoke in populous areas a nuisance and restrain it, even though this affected the use of property and subjected the owner to the expense of compliance.³¹⁴ Similarly, the Court upheld an ordinance that prohibited brick making in a designated area, even though the specified land contained valuable clay deposits which could not profitably be removed for processing elsewhere, was far more valuable for brick making than for any other purpose, had been acquired before it was annexed to the municipality, and had long been used as a brickyard.³¹⁵

With increasing urbanization came a broadening of the philosophy of land-use regulation to protect not only health and safety but also the amenities of modern living.³¹⁶ Consequently, the Court has recognized the power of government, within the loose confines of the Due Process Clause, to zone in many ways and for many purposes. Governments may regulate the height of buildings,³¹⁷ establish building setback requirements,³¹⁸ preserve open spaces (through density controls and restrictions on the numbers of houses),³¹⁹ and preserve historic structures.³²⁰ The Court will generally uphold a challenged land-use plan unless it determines that either the overall plan is arbitrary and unreasonable with no substantial relation to the public health, safety, or general welfare,³²¹ or that the plan as applied amounts to a taking of property without just compensation.³²²

Applying these principles, the Court has held that the exclusion of apartment houses, retail stores, and billboards from a “residential district” in a village is a permissible exercise of municipal power.³²³ Similarly, a housing ordinance in a community of single-family dwellings, in which any number of related persons (blood, adoption, or marriage) could occupy a house but only two unrelated persons could do so, was sustained in the absence of any showing that it was aimed at the deprivation of a “fundamental interest.”³²⁴ Such a fundamental interest, however, was found to be implicated in Moore v. City of East Cleveland³²⁵ by a “single family” zoning ordinance which defined a “family” to exclude a grandmother who had been living with her two grandsons of different children. Similarly, black persons cannot be forbidden to occupy houses in blocks where the greater number of houses are occupied by white persons, or vice versa.³²⁶

In one aspect of zoning—the degree to which such decisions may be delegated to private persons—the Court has not been consistent. Thus, for instance, it invalidated a city ordinance which conferred the power to establish building setback lines upon the owners of two thirds of the property abutting any street.³²⁷ Or, in another case, it struck down an ordinance that permitted the establishment of philanthropic homes for the aged in residential areas, but only upon the written consent of the owners of two-thirds of the property within 400 feet of the proposed facility.³²⁸ In a decision falling chronologically between these two, however, the Court sustained an ordinance that permitted property owners to waive a municipal restriction prohibiting the construction of billboards.³²⁹

In its most recent decision, the Court upheld a city charter provision permitting a petition process by which a citywide referendum could be held on zoning changes and variances. The provision required a 55% approval vote in the referendum to sustain the commission’s decision, and the Court distinguished between delegating such authority to a small group of affected landowners and the people’s retention of the ultimate legislative power in themselves which for convenience they had delegated to a legislative body.³³⁰

Estates, Succession, Abandoned Property.—The Due Process Clause does not prohibit a state from varying the rights of those receiving benefits under intestate laws. Thus, the Court held that the rights of an estate were not impaired where a New York Decedent Estate Law granted a surviving spouse the right to take as in intestacy, despite the fact that the spouse had waived any right to her husband’s estate before the enactment of the law. Because rights of succession to property are of statutory creation, the Court explained, New York could have conditioned any further exercise of testamentary power upon the giving of right of election to the surviving spouse regardless of any waiver, however formally executed.³³¹

Even after the creation of a testamentary trust, a state retains the power to devise new and reasonable directions to the trustee to meet new conditions arising during its administration. For instance, the Great Depression resulted in the default of numerous mortgages which were held by trusts, which had the affect of putting an unexpected accumulation of real property into those trusts. Under these circumstance, the Court upheld the retroactive application of a statute reallocating distribution within these trusts, even where the administration of the estate had already begun, and the new statute had the effect of taking away a remainderman’s right to judicial review of the trustee’s computation of income.³³²

The states have significant discretion to regulate abandoned property. For instance, states have several jurisdictional bases to allow for the lawful application of escheat and abandoned property laws to outofstate corporations. Thus, application of New York’s Abandoned Property Law to New York residents’ life insurance policies, even when issued by foreign corporations, did not deprive such companies of property without due process, where the insured persons had continued to be New York residents and the beneficiaries were resident at the maturity date of the policies. The relationship between New York and its residents who abandon claims against foreign insurance companies, and between New York and foreign insurance companies doing business therein, is sufficiently close to give New York jurisdiction.³³³ Or, in Standard Oil Co. v. New Jersey,³³⁴ a divided Court held that due process is not violated by a state statute escheating shares of stock in a domestic corporation, including unpaid dividends, even though the last known owners were nonresidents and the stock was issued and the dividends held in another state. The state’s power over the debtor corporation gives it power to seize the debts or demands represented by the stock and dividends.

A state’s wide discretion to define abandoned property and dispose of abandoned property can be seen in Texaco v. Short,³³⁵ which upheld an Indiana statute that terminated interests in coal, oil, gas, or other minerals that had not been used in twenty years, and that provided for reversion to the owner of the interest out of which the mining interests had been carved. The “use” of a mineral interest that could prevent its extinction included the actual or attempted extraction of minerals, the payment of rents or royalties, and any payment of taxes. Indeed, merely filing a claim with the local recorder would preserve the interest.³³⁶ The statute provided no notice to owners of interests, however, save for its own publication; nor did it require surface owners to notify owners of mineral interests that the interests were about to expire.³³⁷ By a narrow margin, the Court sustained the statute, holding that the state’s interest in encouraging production, securing timely notices of property ownership, and settling property titles provided a basis for enactment, and finding that due process did not require any actual notice to holders of unused mineral interests.³³⁸ The state “may impose on an owner of a mineral interest the burden of using that interest or filing a current statement of interests” and it may similarly “impose on him the lesser burden of keeping informed of the use or nonuse of his own property.”³³⁹

Health.—Even under the narrowest concept of the police power as limited by substantive due process, it was generally conceded that states could exercise the power to protect the public health, safety, and morals.³⁴⁰ For instance, an ordinance for incineration of garbage and refuse at a designated place as a means of protecting public health is not a taking of private property without just compensation, even though such garbage and refuse may have some elements of value for certain purposes.³⁴¹ Or, compelling property owners to connect with a publicly maintained system of sewers and enforcing that duty by criminal penalties does not violate the Due Process Clause.³⁴²

There are few constitutional restrictions on the extensive state regulations on the production and distribution of food and drugs.³⁴³ Statutes forbidding or regulating the manufacture of oleomargarine have been upheld,³⁴⁴ as have statutes ordering the destruction of unsafe food³⁴⁵ or confiscation of impure milk,³⁴⁶ notwithstanding that, in the latter cases, such articles had a value for purposes other than food. There also can be no question of the authority of the state, in the interest of public health and welfare, to forbid the sale of drugs by itinerant vendors³⁴⁷ or the sale of spectacles by an establishment where a physician or optometrist is not in charge.³⁴⁸ Nor is it any longer possible to doubt the validity of state regulations pertaining to the administration, sale, prescription, and use of dangerous and habit-forming drugs.³⁴⁹

Equally valid as police power regulations are laws forbidding the sale of ice cream not containing a reasonable proportion of butter fat,³⁵⁰ of condensed milk made from skimmed milk rather than whole milk,³⁵¹ or of food preservatives containing boric acid.³⁵² Similarly, a statute intended to prevent fraud and deception by prohibiting the sale of “filled milk” (milk to which has been added any fat or oil other than a milk fat) is valid, at least where such milk has the taste, consistency, and appearance of whole milk products. The Court reasoned that filled milk is inferior to whole milk in its nutritional content and cannot be served to children as a substitute for whole milk without producing a dietary deficiency.³⁵³

Even before the passage of the 21st Amendment, which granted states the specific authority to regulate alcoholic beverages, the Supreme Court had found that the states have significant authority in this regard.³⁵⁴ A state may declare that places where liquor is manufactured or kept are common nuisances,³⁵⁵ and may even subject an innocent owner to the forfeiture of his property if he allows others to use it for the illegal production or transportation of alcohol.³⁵⁶

Safety.—Regulations designed to promote public safety are also well within a state’s authority. For instance, various measures designed to reduce fire hazards have been upheld. These include municipal ordinances that prohibit the storage of gasoline within 300 feet of any dwelling,³⁵⁷ require that all gas storage tanks with a capacity of more than ten gallons be buried at least three feet under ground,³⁵⁸ or prohibit washing and ironing in public laundries and wash houses within defined territorial limits from 10 p. m. to 6 a. m.³⁵⁹ A city’s demolition and removal of wooden buildings erected in violation of regulations was also consistent with the Fourteenth Amendment.³⁶⁰ Construction of property in full compliance with existing laws, however, does not confer upon the owner an immunity against exercise of the police power. Thus, a 1944 amendment to a Multiple Dwelling Law, requiring installation of automatic sprinklers in lodging houses of non-fireproof construction, can be applied to a lodging house constructed in 1940, even though compliance entails an expenditure of $7,500 on a property worth only $25,000.³⁶¹

States exercise extensive regulation over transportation safety. Although state highways are used primarily for private purposes, they are public property, and the use of a highway for financial gain may be prohibited by the legislature or conditioned as it sees fit.³⁶² Consequently, a state may reasonably provide that intrastate carriers who have furnished adequate, responsible, and continuous service over a given route from a specified date in the past shall be entitled to licenses as a matter of right, but that issuance to those whose service began later shall depend upon public convenience and necessity.³⁶³ A state may require private contract carriers for hire to obtain a certificate of convenience and necessity, and decline to grant one if the service of common carriers is impaired thereby. A state may also fix minimum rates applicable to such private carriers, which are not less than those prescribed for common carriers, as a valid as a means of conserving highways.³⁶⁴ In the absence of legislation by Congress, a state may, to protect public safety, deny an interstate motor carrier the use of an already congested highway.³⁶⁵

In exercising its authority over its highways, a state is not limited to the raising of revenue for maintenance and reconstruction or to regulating the manner in which vehicles shall be operated, but may also prevent the wear and hazards due to excessive size of vehicles and weight of load.³⁶⁶ No less constitutional is a municipal traffic regulation that forbids the operation in the streets of any advertising vehicle, excepting vehicles displaying business notices or advertisements of the products of the owner and not used mainly for advertising; and such regulation may be validly enforced to prevent an express company from selling advertising space on the outside of its trucks.³⁶⁷ A state may also provide that a driver who fails to pay a judgment for negligent operation shall have his license and registration suspended for three years, unless, in the meantime, the judgment is satisfied or discharged.³⁶⁸ Compulsory automobile insurance is so plainly valid as to present no federal constitutional question.³⁶⁹

Morality.—Legislatures have wide discretion in regulating “immoral” activities. Thus, legislation suppressing prostitution³⁷⁰ or gambling³⁷¹ will be upheld by the Court as within the police power of a state. Accordingly, a state statute may provide that judgment against a party to recover illegal gambling winnings may be enforced by a lien on the property of the owner of the building where the gambling transaction was conducted when the owner knowingly consented to the gambling.³⁷² Similarly, a court may order a car used in an act of prostitution forfeited as a public nuisance, even if this works a deprivation on an innocent joint owner of the car.³⁷³ For the same reason, lotteries, including those operated under a legislative grant, may be forbidden, regardless of any particular equities.³⁷⁴

As the Due Process Clause protects against arbitrary deprivation of “property,” privileges or benefits that constitute property are entitled to protection.³⁷⁵ Because an existing right of action to recover damages for an injury is property, that right of action is protected by the clause.³⁷⁶ Thus, where repeal of a provision that made directors liable for moneys embezzled by corporate officers was applied retroactively, it deprived certain creditors of their property without due process of law.³⁷⁷ A person, however, has no constitutionally protected property interest in any particular form of remedy and is guaranteed only the preservation of a substantial right to redress by an effective procedure.³⁷⁸

Similarly, a statute creating an additional remedy for enforcing liability does not, as applied to stockholders then holding stock, violate due process.³⁷⁹ Nor does a law that lifts a statute of limitations and makes possible a suit, previously barred, for the value of certain securities. “The Fourteenth Amendment does not make an act of state legislation void merely because it has some retrospective operation. . . . Some rules of law probably could not be changed retroactively without hardship and oppression . . . . Assuming that statutes of limitation, like other types of legislation, could be so manipulated that their retroactive effects would offend the constitution, certainly it cannot be said that lifting the bar of a statute of limitation so as to restore a remedy lost through mere lapse of time is per se an offense against the Fourteenth Amendment.”³⁸⁰

The Fourteenth Amendment does not deprive a state of the power to determine what duties may be performed by local officers, and whether they shall be appointed or popularly elected.³⁸¹ Nor does a statute requiring cities to indemnify owners of property damaged by mobs or during riots result in an unconstitutional deprivation of the property, even when the city could not have prevented the violence.³⁸² Likewise, a person obtaining a judgment against a municipality for damages resulting from a riot is not deprived of property without due process of law by an act that so limits the municipality’s taxing power as to prevent collection of funds adequate to pay it. As long as the judgment continues as an existing liability, no unconstitutional deprivation is experienced.³⁸³

Local units of government obliged to surrender property to other units newly created out of the territory of the former cannot successfully invoke the Due Process Clause,³⁸⁴ nor may taxpayers allege any unconstitutional deprivation as a result of changes in their tax burden attendant upon the consolidation of contiguous municipalities.³⁸⁵ Nor is a statute requiring counties to reimburse cities of the first class but not cities of other classes for rebates allowed for prompt payment of taxes in conflict with the Due Process Clause.³⁸⁶

Generally.—It was not contemplated that the adoption of the Fourteenth Amendment would restrain or cripple the taxing power of the states.³⁸⁷ When the power to tax exists, the extent of the burden is a matter for the discretion of the lawmakers,³⁸⁸ and the Court will refrain from condemning a tax solely on the ground that it is excessive.³⁸⁹ Nor can the constitutionality of taxation be made to depend upon the taxpayer’s enjoyment of any special benefits from use of the funds raised by taxation.³⁹⁰

Theoretically, public moneys cannot be expended for other than public purposes. Some early cases applied this principle by invalidating taxes judged to be imposed to raise money for purely private rather than public purposes.³⁹¹ However, modern notions of public purpose have expanded to the point where the limitation has little practical import.³⁹² Whether a use is public or private, although ultimately a judicial question, “is a practical question addressed to the law-making department, and it would require a plain case of departure from every public purpose which could reasonably be conceived to justify the intervention of a court.”³⁹³

The authority of states to tax income is “universally recognized.”³⁹⁴ Years ago the Court explained that “[e]njoyment of the privileges of residence in the state and the attendant right to invoke the protection of its laws are inseparable from responsibility for sharing the costs of government. . . . A tax measured by the net income of residents is an equitable method of distributing the burdens of government among those who are privileged to enjoy its benefits.”³⁹⁵ Also, a tax on income is not constitutionally suspect because retroactive. The routine practice of making taxes retroactive for the entire year of the legislative session in which the tax is enacted has long been upheld,³⁹⁶ and there are also situations in which courts have upheld retroactive application to the preceding year or two.³⁹⁷

A state also has broad tax authority over wills and inheritance. A state may apply an inheritance tax to the transmission of property by will or descent, or to the legal privilege of taking property by devise or descent,³⁹⁸ although such tax must be consistent with other due process considerations.³⁹⁹ Thus, an inheritance tax law, enacted after the death of a testator but before the distribution of his estate, constitutionally may be imposed on the shares of legatees, notwithstanding that under the law of the state in effect on the date of such enactment, ownership of the property passed to the legatees upon the testator’s death.⁴⁰⁰ Equally consistent with due process is a tax on an inter vivos transfer of property by deed intended to take effect upon the death of the grantor.⁴⁰¹

The taxation of entities that are franchises within the jurisdiction of the governing body raises few concerns. Thus, a city ordinance imposing annual license taxes on light and power companies does not violate the Due Process Clause merely because the city has entered the power business in competition with such companies.⁴⁰² Nor does a municipal charter authorizing the imposition upon a local telegraph company of a tax upon the lines of the company within its limits at the rate at which other property is taxed but upon an arbitrary valuation per mile, deprive the company of its property without due process of law, inasmuch as the tax is a mere franchise or privilege tax.⁴⁰³

States have significant discretion in how to value real property for tax purposes. Thus, assessment of properties for tax purposes over real market value is allowed as merely another way of achieving an increase in the rate of property tax, and does not violate due process.⁴⁰⁴ Likewise, land subject to mortgage may be taxed for its full value without deduction of the mortgage debt from the valuation.⁴⁰⁵

A state also has wide discretion in how to apportion real property tax burdens. Thus, a state may defray the entire expense of creating, developing, and improving a political subdivision either from funds raised by general taxation, by apportioning the burden among the municipalities in which the improvements are made, or by creating (or authorizing the creation of) tax districts to meet sanctioned outlays.⁴⁰⁶ Or, where a state statute authorizes municipal authorities to define the district to be benefitted by a street improvement and to assess the cost of the improvement upon the property within the district in proportion to benefits, their action in establishing the district and in fixing the assessments on included property, cannot, if not arbitrary or fraudulent, be reviewed under the Fourteenth Amendment upon the ground that other property benefitted by the improvement was not included.⁴⁰⁷

On the other hand, when the benefit to be derived by a railroad from the construction of a highway will be largely offset by the loss of local freight and passenger traffic, an assessment upon such railroad violates due process,⁴⁰⁸ whereas any gains from increased traffic reasonably expected to result from a road improvement will suffice to sustain an assessment thereon.⁴⁰⁹ Also the fact that the only use made of a lot abutting on a street improvement is for a railway right of way does not make invalid, for lack of benefits, an assessment thereon for grading, curbing, and paving.⁴¹⁰ However, when a high and dry island was included within the boundaries of a drainage district from which it could not be benefitted directly or indirectly, a tax imposed on the island land by the district was held to be a deprivation of property without due process of law.⁴¹¹ Finally, a state may levy an assessment for special benefits resulting from an improvement already made⁴¹² and may validate an assessment previously held void for want of authority.⁴¹³

Generally.—The operation of the Due Process Clause as a jurisdictional limitation on the taxing power of the states has been an issue in a variety of different contexts, but most involve one of two basic questions. First, is there a sufficient relationship between the state exercising taxing power and the object of the exercise of that power? Second, is the degree of contact sufficient to justify the state’s imposition of a particular obligation? Illustrative of the factual settings in which such issues arise are 1) determining the scope of the business activity of a multi-jurisdictional entity that is subject to a state’s taxing power; 2) application of wealth transfer taxes to gifts or bequests of nonresidents; 3) allocation of the income of multi-jurisdictional entities for tax purposes; 4) the scope of state authority to tax income of nonresidents; and 5) collection of state use taxes.

The Court’s opinions in these cases have often discussed due process and dormant commerce clause issues as if they were indistinguishable.⁴¹⁴ A later decision, Quill Corp. v. North Dakota,⁴¹⁵ however, used a two-tier analysis that found sufficient contact to satisfy due process but not dormant commerce clause requirements. In Quill,⁴¹⁶ the Court struck down a state statute requiring an outofstate mail order company with neither outlets nor sales representatives in the state to collect and transmit use taxes on sales to state residents, but did so based on Commerce Clause rather than due process grounds. Taxation of an interstate business does not offend due process, the Court held, if that business “purposefully avails itself of the benefits of an economic market in the [taxing] State . . . even if it has no physical presence in the State.”⁴¹⁷ Thus, Quill may be read as implying that the more stringent Commerce Clause standard subsumes due process jurisdictional issues, and that consequently these due process issues need no longer be separately considered.⁴¹⁸ This interpretation has yet to be confirmed, however, and a detailed review of due process precedents may prove useful.

Real Property.—Even prior to the ratification of the Fourteenth Amendment, it was a settled principle that a state could not tax land situated beyond its limits. Subsequently elaborating upon that principle, the Court has said that, “we know of no case where a legislature has assumed to impose a tax upon land within the jurisdiction of another State, much less where such action has been defended by a court.”⁴¹⁹ Insofar as a tax payment may be viewed as an exaction for the maintenance of government in consideration of protection afforded, the logic sustaining this rule is self-evident.

Tangible Personalty.—A state may tax tangible property located within its borders (either directly through an ad valorem tax or indirectly through death taxes) irrespective of the residence of the owner.⁴²⁰ By the same token, if tangible personal property makes only occasional incursions into other states, its permanent situs remains in the state of origin, and, subject to certain exceptions, is taxable only by the latter.⁴²¹ The ancient maxim, mobilia sequuntur personam, which originated when personal property consisted in the main of articles appertaining to the person of the owner, yielded in modern times to the “law of the place where the property is kept and used.” The tendency has been to treat tangible personal property as “having a situs of its own for the purpose of taxation, and correlatively to . . . exempt [it] at the domicile of its owner.”⁴²²

Thus, when rolling stock is permanently located and used in a business outside the boundaries of a domiciliary state, the latter has no jurisdiction to tax it.⁴²³ Further, vessels that merely touch briefly at numerous ports never acquire a taxable situs at any one of them, and are taxable in the domicile of their owners or not at all.⁴²⁴ Thus, where airplanes are continually in and out of a state during the course of a tax year, the entire fleet may be taxed by the domicile state.⁴²⁵

Conversely, a nondomiciliary state, although it may not tax property belonging to a foreign corporation that has never come within its borders, may levy a tax on movables that are regularly and habitually used and employed in that state. Thus, although the fact that cars are loaded and reloaded at a refinery in a state outside the owner’s domicile does not fix the situs of the entire fleet in that state, the state may nevertheless tax the number of cars that on the average are found to be present within its borders.⁴²⁶ But no property of an interstate carrier can be taken into account unless it can be seen in some plain and fairly intelligible way that it adds to the value of the road and the rights exercised in the state.⁴²⁷ Or, a state property tax on railroads, which is measured by gross earnings apportioned to mileage, is constitutional unless it exceeds what would be legitimate as an ordinary tax on the property valued as part of a going concern or is relatively higher than taxes on other kinds of property.⁴²⁸

Intangible Personalty.—To determine whether a state may tax intangible personal property, the Court has applied the fiction mobilia sequuntur personam (movable property follows the person) and has also recognized that such property may acquire, for tax purposes, a permanent business or commercial situs. The Court, however, has never clearly disposed of the issue whether multiple personal property taxation of intangibles is consistent with due process. In the case of corporate stock, however, the Court has obliquely acknowledged that the owner thereof may be taxed at his own domicile, at the commercial situs of the issuing corporation, and at the latter’s domicile. Constitutional lawyers speculated whether the Court would sustain a tax by all three jurisdictions, or by only two of them. If the latter, the question would be which two—the state of the commercial situs and of the issuing corporation’s domicile, or the state of the owner’s domicile and that of the commercial situs.⁴²⁹

Thus far, the Court has sustained the following personal property taxes on intangibles: (1) a debt held by a resident against a nonresident, evidenced by a bond of the debtor and secured by a mortgage on real estate in the state of the debtor’s residence;⁴³⁰ (2) a mortgage owned and kept outside the state by a nonresident but on land within the state;⁴³¹ (3) investments, in the form of loans to a resident, made by a resident agent of a nonresident creditor;⁴³² (4) deposits of a resident in a bank in another state, where he carries on a business and from which these deposits are derived, but belonging absolutely to him and not used in the business ;⁴³³ (5) membership owned by a nonresident in a domestic exchange, known as a chamber of commerce;⁴³⁴ (6) membership by a resident in a stock exchange located in another state;⁴³⁵ (7) stock held by a resident in a foreign corporation that does no business and has no property within the taxing state;⁴³⁶ (8) stock in a foreign corporation owned by another foreign corporation transacting its business within the taxing state;⁴³⁷ (9) shares owned by nonresident shareholders in a domestic corporation, the tax being assessed on the basis of corporate assets and payable by the corporation either out of its general fund or by collection from the shareholder;⁴³⁸ (10) dividends of a corporation distributed ratably among stockholders regardless of their residence outside the state;⁴³⁹ (11) the transfer within the taxing state by one nonresident to another of stock certificates issued by a foreign corporation;⁴⁴⁰ and (12) promissory notes executed by a domestic corporation, although payable to banks in other states.⁴⁴¹

The following personal property taxes on intangibles have been invalidated:(1) debts evidenced by notes in safekeeping within the taxing state, but made and payable and secured by property in a second state and owned by a resident of a third state;⁴⁴² (2) a tax, measured by income, levied on trust certificates held by a resident, representing interests in various parcels of land (some inside the state and some outside), the holder of the certificates, though without a voice in the management of the property, being entitled to a share in the net income and, upon sale of the property, to the proceeds of the sale.⁴⁴³

The Court also invalidated a property tax sought to be collected from a life beneficiary on the corpus of a trust composed of property located in another state and as to which the beneficiary had neither control nor possession, apart from the receipt of income therefrom.⁴⁴⁴ However, a personal property tax may be collected on one-half of the value of the corpus of a trust from a resident who is one of the two trustees thereof, not withstanding that the trust was created by the will of a resident of another state in respect of intangible property located in the latter state, at least where it does not appear that the trustee is exposed to the danger of other ad valorem taxes in another state.⁴⁴⁵ The first case, Brooke v. Norfolk,⁴⁴⁶ is distinguishable by virtue of the fact that the property tax therein voided was levied upon a resident beneficiary rather than upon a resident trustee in control of nonresident intangibles. Also different is Safe Deposit & Trust Co. v. Virginia,⁴⁴⁷ where a property tax was unsuccessfully demanded of a nonresident trustee with respect to nonresident intangibles under its control.

A state in which a foreign corporation has acquired a commercial domicile and in which it maintains its general business offices may tax the corporation’s bank deposits and accounts receivable even though the deposits are outside the state and the accounts receivable arise from manufacturing activities in another state. Similarly, a nondomiciliary state in which a foreign corporation did business can tax the “corporate excess” arising from property employed and business done in the taxing state.⁴⁴⁸ On the other hand, when the foreign corporation transacts only interstate commerce within a state, any excise tax on such excess is void, irrespective of the amount of the tax.⁴⁴⁹

Also a domiciliary state that imposes no franchise tax on a stock fire insurance corporation may assess a tax on the full amount of paid-in capital stock and surplus, less deductions for liabilities, notwithstanding that such domestic corporation concentrates its executive, accounting, and other business offices in New York, and maintains in the domiciliary state only a required registered office at which local claims are handled. Despite “the vicissitudes which the so-called ‘jurisdiction-to-tax’ doctrine has encountered,” the presumption persists that intangible property is taxable by the state of origin.⁴⁵⁰

A property tax on the capital stock of a domestic company, however, the appraisal of which includes the value of coal mined in the taxing state but located in another state awaiting sale, deprives the corporation of its property without due process of law.⁴⁵¹ Also void for the same reason is a state tax on the franchise of a domestic ferry company that includes in the valuation of the tax the worth of a franchise granted to the company by another state.⁴⁵²

Transfer (Inheritance, Estate, Gift) Taxes.—As a state has authority to regulate transfer of property by wills or inheritance, it may base its succession taxes upon either the transmission or receipt of property by will or by descent.⁴⁵³ But whatever may be the justification of their power to levy such taxes, since 1905 the states have consistently found themselves restricted by the rule in Union Transit Co. v. Kentucky,⁴⁵⁴ which precludes imposition of transfer taxes upon tangible which are permanently located or have an actual situs outside the state.

In the case of intangibles, however, the Court has oscillated in upholding, then rejecting, and again sustaining the levy by more than one state of death taxes upon intangibles. Until 1930, transfer taxes upon intangibles by either the domiciliary or the situs (but nondomiciliary) state, were with rare exceptions approved. Thus, in Bullen v. Wisconsin,⁴⁵⁵ the domiciliary state of the creator of a trust was held competent to levy an inheritance tax on an outofstate trust fund consisting of stocks, bonds, and notes, as the settlor reserved the right to control disposition and to direct payment of income for life. The Court reasoned that such reserved powers were the equivalent to a fee in the property. It took cognizance of the fact that the state in which these intangibles had their situs had also taxed the trust.⁴⁵⁶

On the other hand, the mere ownership by a foreign corporation of property in a nondomiciliary state was held insufficient to support a tax by that state on the succession to shares of stock in that corporation owned by a nonresident decedent.⁴⁵⁷ Also against the trend was Blodgett v. Silberman,⁴⁵⁸ in which the Court defeated collection of a transfer tax by the domiciliary state by treating coins and bank notes deposited by a decedent in a safe deposit box in another state as tangible property.⁴⁵⁹

In the course of about two years following the Depression, the Court handed down a group of four decisions that placed the stamp of disapproval upon multiple transfer taxes and—by inference— other multiple taxation of intangibles.⁴⁶⁰ The Court found that “practical considerations of wisdom, convenience and justice alike dictate the desirability of a uniform rule confining the jurisdiction to impose death transfer taxes as to intangibles to the State of the [owner’s] domicile.”⁴⁶¹ Thus, the Court proceeded to deny the right of nondomiciliary states to tax intangibles, rejecting jurisdictional claims founded upon such bases as control, benefit, protection or situs. During this interval, 1930–1932, multiple transfer taxation of intangibles came to be viewed, not merely as undesirable, but as so arbitrary and unreasonable as to be prohibited by the Due Process Clause.

The Court has expressly overruled only one of these four decisions condemning multiple succession taxation of intangibles. In 1939, in Curry v. McCanless, the Court announced a departure from “[t]he doctrine, of recent origin, that the Fourteenth Amendment precludes the taxation of any interest in the same intangible in more than one state . . . .”⁴⁶² Taking cognizance of the fact that this doctrine had never been extended to the field of income taxation or consistently applied in the field of property taxation, the Court declared that a correct interpretation of constitutional requirements would dictate the following conclusions: “From the beginning of our constitutional system control over the person at the place of his domicile and his duty there, common to all citizens, to contribute to the support of government have been deemed to afford an adequate constitutional basis for imposing on him a tax on the use and enjoyment of rights in intangibles measured by their value. . . . But when the taxpayer extends his activities with respect to his intangibles, so as to avail himself of the protection and benefit of the laws of another state, in such a way as to bring his person or property within the reach of the tax gatherer there, the reason for a single place of taxation no longer obtains . . . . [However], the state of domicile is not deprived, by the taxpayer’s activities elsewhere, of its constitutional jurisdiction to tax . . . .”⁴⁶³

In accordance with this line of reasoning, the domicile of a decedent (Tennessee) and the state where a trust received securities conveyed from the decedent by will (Alabama) were both allowed to impose a tax on the transfer of these securities. “In effecting her purposes, the testatrix brought some of the legal interests which she created within the control of one state by selecting a trustee there and others within the control of the other state by making her domicile there. She necessarily invoked the aid of the law of both states, and her legatees, before they can secure and enjoy the benefits of succession, must invoke the law of both.”⁴⁶⁴

On the authority of Curry v. McCanless, the Court, in Pearson v. McGraw,⁴⁶⁵ sustained the application of an Oregon transfer tax to intangibles handled by an Illinois trust company, although the property was never physically present in Oregon. Jurisdiction to tax was viewed as dependent, not on the location of the property in the state, but on the fact that the owner was a resident of Oregon. In Graves v. Elliott,⁴⁶⁶ the Court upheld the power of New York, in computing its estate tax, to include in the gross estate of a domiciled decedent the value of a trust of bonds managed in Colorado by a Colorado trust company and already taxed on its transfer by Colorado, which trust the decedent had established while in Colorado and concerning which he had never exercised any of his reserved powers of revocation or change of beneficiaries. It was observed that “the power of disposition of property is the equivalent of ownership. It is a potential source of wealth and its exercise in the case of intangibles is the appropriate subject of taxation at the place of the domicile of the owner of the power. The relinquishment at death, in consequence of the non-exercise in life, of a power to revoke a trust created by a decedent is likewise an appropriate subject of taxation.”⁴⁶⁷

The costliness of multiple taxation of estates comprising intangibles can be appreciably aggravated if one or more states find that the decedent died domiciled within its borders. In such cases, contesting states may discover that the assets of the estate are insufficient to satisfy their claims. Thus, in Texas v. Florida,⁴⁶⁸ the State of Texas filed an original petition in the Supreme Court against three other states who claimed to be the domicile of the decedent, noting that the portion of the estate within Texas alone would not suffice to discharge its own tax, and that its efforts to collect its tax might be defeated by adjudications of domicile by the other states. The Supreme Court disposed of this controversy by sustaining a finding that the decedent had been domiciled in Massachusetts, but intimated that thereafter it would take jurisdiction in like situations only in the event that an estate was valued less than the total of the demands of the several states, so that the latter were confronted with a prospective inability to collect.

Corporate Privilege Taxes.—A domestic corporation may be subjected to a privilege tax graduated according to paid-up capital stock, even though the stock represents capital not subject to the taxing power of the state, because the tax is levied not on property but on the privilege of doing business in corporate form.⁴⁶⁹ However, a state cannot tax property beyond its borders under the guise of taxing the privilege of doing an intrastate business. Therefore, a license tax based on the authorized capital stock of an outofstate corporation is void,⁴⁷⁰ even though there is a maximum fee,⁴⁷¹ unless the tax is apportioned based on property interests in the taxing state.⁴⁷² On the other hand, a fee collected only once as the price of admission to do intrastate business is distinguishable from a tax and accordingly may be levied on an outofstate corporation based on the amount of its authorized capital stock.⁴⁷³

A municipal license tax imposed on a foreign corporation for goods sold within and without the state, but manufactured in the city, is not a tax on business transactions or property outside the city and therefore does not violate the Due Process Clause.⁴⁷⁴ But a state lacks jurisdiction to extend its privilege tax to the gross receipts of a foreign contracting corporation for fabricating equipment outside the taxing state, even if the equipment is later installed in the taxing state. Unless the activities that are the subject of the tax are carried on within its territorial limits, a state is not competent to impose such a privilege tax.⁴⁷⁵

Individual Income Taxes.—A state may tax annually the entire net income of resident individuals from whatever source received,⁴⁷⁶ as jurisdiction is founded upon the rights and privileges incident to domicile. A state may also tax the portion of a nonresident’s net income that derives from property owned by him within its borders, and from any business, trade, or profession carried on by him within its borders.⁴⁷⁷ This state power is based upon the state’s dominion over the property he owns, or over activity from which the income derives, and from the obligation to contribute to the support of a government that secures the collection of such income. Accordingly, a state may tax residents on income from rents of land located outside the state; from interest on bonds physically outside the state and secured by mortgage upon lands physically outside the state;⁴⁷⁸ and from a trust created and administered in another state and not directly taxable to the trustee.⁴⁷⁹ Further, the fact that another state has lawfully taxed identical income in the hands of trustees operating in that state does not necessarily destroy a domiciliary state’s right to tax the receipt of income by a resident beneficiary.⁴⁸⁰

Corporate Income Taxes: Foreign Corporations.—A tax based on the income of a foreign corporation may be determined by allocating to the state a proportion of the total,⁴⁸¹ unless the income attributed to the state is out of all appropriate proportion to the business transacted in the state.⁴⁸² Thus, a franchise tax on a foreign corporation may be measured by income, not just from business within the state, but also on net income from interstate and foreign business.⁴⁸³ Because the privilege granted by a state to a foreign corporation of carrying on business supports a tax by that state, it followed that a Wisconsin privilege dividend tax could be applied to a Delaware corporation despite its having its principal offices in New York, holding its meetings and voting its dividends in New York, and drawing its dividend checks on New York bank accounts. The tax could be imposed on the “privilege of declaring and receiving dividends” out of income derived from property located and business transacted in Wisconsin, equal to a specified percentage of such dividends, the corporation being required to deduct the tax from dividends payable to resident and nonresident shareholders.⁴⁸⁴

Insurance Company Taxes.—A privilege tax on the gross premiums received by a foreign life insurance company at its home office for business written in the state does not deprive the company of property without due process,⁴⁸⁵ but such a tax is invalid if the company has withdrawn all its agents from the state and has ceased to do business there, merely continuing to receive the renewal premiums at its home office.⁴⁸⁶ Also violating due process is a state insurance premium tax imposed on a nonresident firm doing business in the taxing jurisdiction, where the firm obtained the coverage of property within the state from an unlicenced outofstate insurer that consummated the contract, serviced the policy, and collected the premiums outside that taxing jurisdiction.⁴⁸⁷ However, a tax may be imposed upon the privilege of entering and engaging in business in a state, even if the tax is a percentage of the “annual premiums to be paid throughout the life of the policies issued.” Under this kind of tax, a state may continue to collect even after the company’s withdrawal from the state.⁴⁸⁸

A state may lawfully extend a tax to a foreign insurance company that contracts with an automobile sales corporation in a third state to insure customers of the automobile sales corporation against loss of cars purchased through the automobile sales corporation, insofar as the cars go into the possession of a purchaser within the taxing state.⁴⁸⁹ On the other hand, a foreign corporation admitted to do a local business, which insures its property with insurers in other states who are not authorized to do business in the taxing state, cannot constitutionally be subjected to a 5% tax on the amount of premiums paid for such coverage.⁴⁹⁰ Likewise a Connecticut life insurance corporation, licensed to do business in California, which negotiated reinsurance contracts in Connecticut, received payment of premiums on such contracts in Connecticut, and was liable in Connecticut for payment of losses claimed under such contracts, cannot be subjected by California to a privilege tax measured by gross premiums derived from such contracts, notwithstanding that the contracts reinsured other insurers authorized to do business in California and protected policies effected in California on the lives of California residents. The tax cannot be sustained whether as laid on property, business done, or transactions carried on, within California, or as a tax on a privilege granted by that state.⁴⁹¹

Generally.—The Supreme Court has never decided exactly what due process is required in the assessment and collection of general taxes. Although the Court has held that “notice to the owner at some stage of the proceedings, as well as an opportunity to defend, is essential” for imposition of special taxes, it has also ruled that laws for assessment and collection of general taxes stand upon a different footing and are to be construed with the utmost liberality, even to the extent of acknowledging that no notice whatever is necessary.⁴⁹² Due process of law as applied to taxation does not mean judicial process;⁴⁹³ neither does it require the same kind of notice as is required in a suit at law, or even in proceedings for taking private property under the power of eminent domain.⁴⁹⁴ Due process is satisfied if a taxpayer is given an opportunity to test the validity of a tax at any time before it is final, whether before a board having a quasi-judicial character, or before a tribunal provided by the state for such purpose.⁴⁹⁵

Notice and Hearing in Relation to Taxes.—“Of the different kinds of taxes which the State may impose, there is a vast number of which, from their nature, no notice can be given to the taxpayer, nor would notice be of any possible advantage to him, such as poll taxes, license taxes (not dependent upon the extent of his business), and generally, specific taxes on things, or persons, or occupations. In such cases the legislature, in authorizing the tax, fixes its amount, and that is the end of the matter. If the tax be not paid, the property of the delinquent may be sold, and he be thus deprived of his property. Yet there can be no question, that the proceeding is due process of law, as there is no inquiry into the weight of evidence, or other element of a judicial nature, and nothing could be changed by hearing the tax-payer. No right of his is, therefore, invaded. Thus, if the tax on animals be a fixed sum per head, or on articles a fixed sum per yard, or bushel, or gallon, there is nothing the owner can do which can affect the amount to be collected from him. So, if a person wishes a license to do business of a particular kind, or at a particular place, such as keeping a hotel or a restaurant, or selling liquors, or cigars, or clothes, he has only to pay the amount required by law and go into the business. There is no need in such cases for notice or hearing. So, also, if taxes are imposed in the shape of licenses for privileges, such as those on foreign corporations for doing business in the state, or on domestic corporations for franchises, if the parties desire the privilege, they have only to pay the amount required. In such cases there is no necessity for notice or hearing. The amount of the tax would not be changed by it.”⁴⁹⁶

Notice and Hearing in Relation to Assessments.—“But where a tax is levied on property not specifically, but according to its value, to be ascertained by assessors appointed for that purpose upon such evidence as they may obtain, a different principle comes in. The officers in estimating the value act judicially; and in most of the States provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting at designated periods provided by law to hear complaints respecting the justice of the assessments. The law in prescribing the time when such complaints will be heard, gives all the notice required, and the proceedings by which the valuation is determined, though it may be followed, if the tax be not paid, by a sale of the delinquent’s property, is due process of law.”⁴⁹⁷

Nevertheless, it has never been considered necessary to the validity of a tax that the party charged shall have been present, or had an opportunity to be present, in some tribunal when he was assessed.⁴⁹⁸ Where a tax board has its time of sitting fixed by law and where its sessions are not secret, no obstacle prevents the appearance of any one before it to assert a right or redress a wrong and in the business of assessing taxes, this is all that can be reasonably asked.⁴⁹⁹ Nor is there any constitutional command that notice of an assessment as well as an opportunity to contest it be given in advance of the assessment. It is enough that all available defenses may be presented to a competent tribunal during a suit to collect the tax and before the demand of the state for remittance becomes final.⁵⁰⁰

However, when assessments based on the enjoyment of a special benefit are made by a political subdivision, a taxing board or court, the property owner is entitled to be heard as to the amount of his assessments and upon all questions properly entering into that determination.⁵⁰¹ The hearing need not amount to a judicial inquiry,⁵⁰² although a mere opportunity to submit objections in writing, without the right of personal appearance, is not sufficient.⁵⁰³ Generally, if an assessment for a local improvement is made in accordance with a fixed rule prescribed by legislative act, the property owner is not entitled to be heard in advance on the question of benefits.⁵⁰⁴ On the other hand, if the area of the assessment district was not determined by the legislature, a landowner does have the right to be heard respecting benefits to his property before it can be included in the improvement district and assessed, but due process is not denied if, in the absence of actual fraud or bad faith, the decision of the agency vested with the initial determination of benefits is made final.⁵⁰⁵ The owner has no constitutional right to be heard in opposition to the launching of a project which may end in assessment, and once his land has been duly included within a benefit district, the only privilege which he thereafter enjoys is to a hearing upon the apportionment, that is, the amount of the tax which he has to pay.⁵⁰⁶

More specifically, where the mode of assessment resolves itself into a mere mathematical calculation, there is no necessity for a hearing.⁵⁰⁷ Statutes and ordinances providing for the paving and grading of streets, the cost thereof to be assessed on the front foot rule, do not, by their failure to provide for a hearing or review of assessments, generally deprive a complaining owner of property without due process of law.⁵⁰⁸ In contrast, when an attempt is made to cast upon particular property a certain proportion of the construction cost of a sewer not calculated by any mathematical formula, the taxpayer has a right to be heard.⁵⁰⁹

Collection of Taxes.—States may undertake a variety of methods to collect taxes. For instance, collection of an inheritance tax may be expedited by a statute requiring the sealing of safe deposit boxes for at least ten days after the death of the renter and obliging the lessor to retain assets found therein sufficient to pay the tax that may be due the state.⁵¹⁰ A state may compel retailers to collect such gasoline taxes from consumers and, under penalty of a fine for delinquency, to remit monthly the amounts thus collected.⁵¹¹ In collecting personal income taxes, most states require employers to deduct and withhold the tax from the wages of employees.⁵¹²

States may also use various procedures to collect taxes from prior tax years. To reach property that has escaped taxation, a state may tax estates of decedents for a period prior to death and grant proportionate deductions for all prior taxes that the personal representative can prove to have been paid.⁵¹³ In addition, the Court found no violation of property rights when a state asserts a prior lien against trucks repossessed by a vendor from a carrier (1) accruing from the operation by the carrier of trucks not sold by the vendors, either before or during the time the carrier operated the vendors’ trucks, or (2) arising from assessments against the carrier, after the trucks were repossessed, but based upon the carrier’s operations preceding such repossession. Such lien need not be limited to trucks owned by the carrier because the wear on the highways occasioned by the carrier’s operation is in no way altered by the vendor’s retention of title.⁵¹⁴

As a state may provide in advance that taxes will bear interest from the time they become due, it may with equal validity stipulate that taxes which have become delinquent will bear interest from the time the delinquency commenced. Further, a state may adopt new remedies for the collection of taxes and apply these remedies to taxes already delinquent.⁵¹⁵ After liability of a taxpayer has been fixed by appropriate procedure, collection of a tax by distress and seizure of his person does not deprive him of liberty without due process of law.⁵¹⁶ Nor is a foreign insurance company denied due process of law when its personal property is distrained to satisfy unpaid taxes.⁵¹⁷

The requirements of due process are fulfilled by a statute which, in conjunction with affording an opportunity to be heard, provides for the forfeiture of titles to land for failure to list and pay taxes thereon for certain specified years.⁵¹⁸ No less constitutional, as a means of facilitating collection, is an in rem proceeding, to which the land alone is made a party, whereby tax liens on land are foreclosed and all preexisting rights or liens are eliminated by a sale under a decree.⁵¹⁹ On the other hand, although the conversion of an unpaid special assessment into both a personal judgment against the owner as well as a charge on the land is consistent with the Fourteenth Amendment,⁵²⁰ a judgment imposing personal liability against a nonresident taxpayer over whom the state court acquired no jurisdiction is void.⁵²¹ Apart from such restraints, however, a state is free to adopt new remedies for the collection of taxes and even to apply new remedies to taxes already delinquent.⁵²²

Sufficiency and Manner of Giving Notice.—Notice of tax assessments or liabilities, insofar as it is required, may be either personal, by publication, by statute fixing the time and place of hearing,⁵²³ or by delivery to a statutorily designated agent.⁵²⁴ As regards land, “where the State . . . [desires] to sell land for taxes upon proceedings to enforce a lien for the payment thereof, it may proceed directly against the land within the jurisdiction of the court, and a notice which permits all interested, who are ‘so minded,’ to ascertain that it is to be subjected to sale to answer for taxes, and to appear and be heard, whether to be found within the jurisdiction or not, is due process of law within the Fourteenth Amendment. . . .” In fact, compliance with statutory notice requirements combined with actual notice to owners of land can be sufficient in an in rem case, even if there are technical defects in such notice.⁵²⁵

Whether statutorily required notice is sufficient may vary with the circumstances. Thus, where a taxpayer was not legally competent, no guardian had been appointed and town officials were aware of these facts, notice of a foreclosure was defective, even though the tax delinquency was mailed to her, published in local papers, and posted in the town post office.⁵²⁶ On the other hand, due process was not denied to appellants who were unable to avert foreclosure on certain trust lands (based on liens for unpaid water charges) because their own bookkeeper failed to inform them of the receipt of mailed notices.⁵²⁷

Sufficiency of Remedy.—When no other remedy is available, due process is denied by a judgment of a state court withholding a decree in equity to enjoin collection of a discriminatory tax.⁵²⁸ Requirements of due process are similarly violated by a statute that limits a taxpayer’s right to challenge an assessment to cases of fraud or corruption,⁵²⁹ and by a state tribunal that prevents the recovery of taxes imposed in violation of the Constitution and laws of the United States by invoking a state law that allows suits to recover taxes alleged to have been assessed illegally only if the taxes had been paid at the time and in the manner provided by such law.⁵³⁰ In the case of a tax held unconstitutional as a discrimination against interstate commerce and not invalidated in its entirety, the state has several alternatives for equalizing incidence of the tax: it may pay a refund equal to the difference between the tax paid and the tax that would have been due under rates afforded to instate competitors; it may assess and collect back taxes from those competitors; or it may combine the two approaches.⁵³¹

Laches.—Persons failing to avail themselves of an opportunity to object and be heard cannot thereafter complain of assessments as arbitrary and unconstitutional.⁵³² Likewise a car company that failed to report its gross receipts, as required by statute, has no further right to contest the state comptroller’s estimate of those receipts and his adding to his estimate the 10 percent penalty permitted by law.⁵³³

The Due Process Clause of the Fourteenth Amendment has been held to require that when a state or local governmental body, or a private body exercising delegated power, takes private property it must provide just compensation and take only for a public purpose. Applicable principles are discussed under the Fifth Amendment.⁵³⁴

A counterpart to the now-discredited economic substantive due process, noneconomic substantive due process is still vital today. The concept has come to include disparate lines of cases, and various labels have been applied to the rights protected, including “fundamental rights,” “privacy rights,” “liberty interests” and “incorporated rights.” The binding principle of these cases is that they involve rights so fundamental that the courts must subject any legislation infringing on them to close scrutiny. This analysis, criticized by some for being based on extra-constitutional precepts of natural law,⁵³⁵ serves as the basis for some of the most significant constitutional holdings of our time. For instance, the application of the Bill of Rights to the states, seemingly uncontroversial today, is based not on constitutional text, but on noneconomic substantive due process and the “incorporation” of fundamental rights.⁵³⁶ Other noneconomic due process holdings, however, such as the cases establishing the right of a woman to have an abortion,⁵³⁷ remain controversial.

Determining Noneconomic Substantive Due Process Rights.—More so than other areas of law, noneconomic substantive due process seems to have started with few fixed precepts. Were the rights being protected property rights (and thus really protected by economic due process) or were they individual liberties? What standard of review needed to be applied? What were the parameters of such rights once identified? For instance, did a right of “privacy” relate to protecting physical spaces such as one’s home, or was it related to the issue of autonomy to make private, intimate decisions? Once a right was identified, often using abstract labels, how far could such an abstraction be extended? Did protecting the “privacy” of the decisions whether to have a family also include the right to make decisions regarding sexual intimacy? Although many of these issues have been resolved, others remain.

One of the earliest formulations of noneconomic substantive due process was the right to privacy. This right was first proposed by Samuel Warren and Louis Brandeis in an 1890 Harvard Law Review article⁵³⁸ as a unifying theme to various common law protections of the “right to be left alone,” including the developing laws of nuisance, libel, search and seizure, and copyright. According to the authors, “the right to life has come to mean the right to enjoy life,—the right to be let alone . . . . This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.”

The concepts put forth in this article, which appeared to relate as much to private intrusions on persons as to intrusions by government, reappeared years later in a dissenting opinion by Justice Brandeis regarding the Fourth Amendment.⁵³⁹ Then, in the 1920s, at the heyday of economic substantive due process, the Court ruled in two cases that, although nominally involving the protection of property, foreshadowed the rise of the protection of noneconomic interests. In Meyer v. Nebraska,⁵⁴⁰ the Court struck down a state law forbidding schools from teaching any modern foreign language to any child who had not successfully finished the eighth grade. Two years later, in Pierce v. Society of Sisters,⁵⁴¹ the Court declared it unconstitutional to require public school education of children aged eight to sixteen. The statute in Meyer was found to interfere with the property interest of the plaintiff, a German teacher, in pursuing his occupation, while the private school plaintiffs in Pierce were threatened with destruction of their businesses and the values of their properties.⁵⁴² Yet in both cases the Court also permitted the plaintiffs to represent the interests of parents and children in the assertion of other noneconomic forms of “liberty.”

“Without doubt,” Justice McReynolds said in Meyer, liberty “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”⁵⁴³ The right of the parents to have their children instructed in a foreign language was “within the liberty of the [Fourteenth] Amendment.”⁵⁴⁴ Meyer was then relied on in Pierce to assert that the statute there “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. . . . The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”⁵⁴⁵

Although the Supreme Court continued to define noneconomic liberty broadly in dicta,⁵⁴⁶ this new concept was to have little impact for decades.⁵⁴⁷ Finally, in 1967, in Loving v. Virginia,⁵⁴⁸ the Court held that a statute prohibiting interracial marriage denied substantive due process. Marriage was termed “one of the ‘basic civil rights of man’” and a “fundamental freedom.” “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” and the classification of marriage rights on a racial basis was “unsupportable.” Further development of this line of cases was slowed by the expanded application of the Bill of Rights to the states, which afforded the Court an alternative ground to void state policies.⁵⁴⁹

Despite the Court’s increasing willingness to overturn state legislation, the basis and standard of review that the Court would use to review infringements on “fundamental freedoms” were not always clear. In Poe v. Ullman,⁵⁵⁰ for instance, the Court dismissed as non-justiciable a suit challenging a Connecticut statute banning the use of contraceptives, even by married couples. In dissent, however, Justice Harlan advocated the application of a due process standard of reasonableness—the same lenient standard he would have applied to test economic legislation.⁵⁵¹ Applying a lengthy analysis, Justice Harlan concluded that the statute in question infringed upon a fundamental liberty without the showing of a justification which would support the intrusion. Yet, when the same issue returned to the Court in Griswold v. Connecticut,⁵⁵² a majority of the Justices rejected reliance on substantive due process⁵⁵³ and instead decided it on another basis—that the statute was an invasion of privacy, which was a non-textual “penumbral” ri⁵⁵⁴ ght protected by a matrix of constitutional provisions. Not only was this right to be protected again governmental intrusion, but there was apparently little or no consideration to be given to what governmental interests might justify such an intrusion upon the marital bedroom.

The apparent lack of deference to state interests in Griswold was borne out in the early abortion cases, discussed in detail below, which required the showing of a “compelling state interest” to interfere with a woman’s right to terminate a pregnancy.⁵⁵⁵ Yet, in other contexts, the Court appears to have continued to use a “reasonableness” standard.⁵⁵⁶ More recently, the Court has complicated the issue further (again in the abortion context) by the addition of yet another standard, “undue burden.”⁵⁵⁷

A further problem confronting the Court is how such abstract rights, once established, are to be delineated. For instance, the constitutional protections afforded to marriage, family, and procreation in Griswold have been extended by the Court to apply to married and unmarried couples alike.⁵⁵⁸ However, in Bowers v. Hardwick,⁵⁵⁹ the Court majority rejected a challenge to a Georgia sodomy law despite the fact that it prohibited types of intimate activities engaged in by married as well as unmarried couples.⁵⁶⁰ Then, in Lawrence v. Texas,⁵⁶¹ the Supreme Court reversed itself, holding that a Texas statute making it a crime for two persons of the same sex to engage in intimate sexual conduct violates the Due Process Clause.

More broadly, in Washington v. Glucksberg, the Court, in an effort to guide and “restrain” a court’s determination of the scope of substantive due process rights, held that the concept of “liberty” protected under the Due Process Clause should first be understood to protect only those rights that are “deeply rooted in this Nation’s history and tradition.”⁵⁶² Moreover, the Court in Glucksberg required a “careful description” of fundamental rights that would be grounded in specific historical practices and traditions that serve as “crucial guideposts for responsible decisionmaking.”⁵⁶³ However, subject formulation for assessing fundamental rights in holding that the Due Process Clause required states to license and recognize marriages between two people of the same sex.⁵⁶⁴ Instead, the Obergefell Court recognized that fundamental rights do not “come from ancient sources alone” and instead must be viewed in light of evolving social norms and in a “comprehensive” manner.⁵⁶⁵ For the Obergefell Court, the two-part test relied on in Glucksberg—relying on history as a central guide for constitutional liberty protections and requiring a “careful description” of the right in question—was “inconsistent” with the approach taken in cases discussing certain fundamental rights, including the rights to marriage and intimacy, and would result in rights becoming stale, as “received practices could serve as their own continued justification and new groups could not invoke rights once denied.”⁵⁶⁶

Similar disagreement over the appropriate level of generality for definition of a liberty interest was evident in Michael H. v. Gerald D., involving the rights of a biological father to establish paternity and associate with a child born to the wife of another man.⁵⁶⁷ While recognizing the protection traditionally afforded a father, Justice Scalia, joined only by Chief Justice Rehnquist in this part of the plurality decision, rejected the argument that a non-traditional familial connection (i. e. the relationship between a father and the offspring of an adulterous relationship) qualified for constitutional protection, arguing that courts should limit consideration to “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”⁵⁶⁸ Dissenting Justice Brennan, joined by two others, rejected the emphasis on tradition, and argued instead that the Court should “ask whether the specific parent-child relationship under consideration is close enough to the interests that we already have protected [as] an aspect of ‘liberty.’”⁵⁶⁹

Abortion.—In Roe v. Wade,⁵⁷⁰ the Court established a right of personal privacy protected by the Due Process Clause that includes the right of a woman to determine whether or not to bear a child. In doing so, the Court dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in practically all the states, the District of Columbia, and the territories. To reach this result, the Court first undertook a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on abortion were of relatively recent vintage and thus lacked the historical foundation which might have preserved them from constitutional review.⁵⁷¹ Then, the Court established that the word “person” as used in the Due Process Clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn lacked federal constitutional protection.⁵⁷² Finally, the Court summarily announced that the “Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” includes “a right of personal privacy, or a guarantee of certain areas or zones of privacy”⁵⁷³ and that “[t]his right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”⁵⁷⁴

It was also significant that the Court held this right of privacy to be “fundamental” and, drawing upon the strict standard of review found in equal protection litigation, held that the Due Process Clause required that any limits on this right be justified only by a “compelling state interest” and be narrowly drawn to express only the legitimate state interests at stake.⁵⁷⁵ Assessing the possible interests of the states, the Court rejected justifications relating to the promotion of morality and the protection of women from the medical hazards of abortions as unsupported in the record and ill-served by the laws in question. Further, the state interest in protecting the life of the fetus was held to be limited by the lack of a social consensus with regard to the issue of when life begins. Two valid state interests were, however, recognized. “[T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . [and] it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’”⁵⁷⁶

Because medical data indicated that abortion prior to the end of the first trimester is relatively safe, the mortality rate being lower than the rates for normal childbirth, and because the fetus has no capability of meaningful life outside the mother’s womb, the Court found that the state has no “compelling interest” in the first trimester and “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.”⁵⁷⁷ In the intermediate trimester, the danger to the woman increases and the state may therefore regulate the abortion procedure “to the extent that the regulation reasonably relates to the preservation and protection of maternal health,” but the fetus is still not able to survive outside the womb, and consequently the actual decision to have an abortion cannot be otherwise impeded.⁵⁷⁸ “With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”⁵⁷⁹

Thus, the Court concluded that “(a) for the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician; (b) for the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health; (c) for the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

Further, in a companion case, the Court struck down three procedural provisions relating to a law that did allow some abortions.⁵⁸⁰ These regulations required that an abortion be performed in a hospital accredited by a private accrediting organization, that the operation be approved by the hospital staff abortion committee, and that the performing physician’s judgment be confirmed by the independent examination of the patient by two other licensed physicians. These provisions were held not to be justified by the state’s interest in maternal health because they were not reasonably related to that interest.⁵⁸¹ But a clause making the performance of an abortion a crime except when it is based upon the doctor’s “best clinical judgment that an abortion is necessary” was upheld against vagueness attack and was further held to benefit women seeking abortions on the grounds that the doctor could use his best clinical judgment in light of all the attendant circumstances.⁵⁸²

After Roe, various states attempted to limit access to this newly found right, such as by requiring spousal or parental consent to obtain an abortion.⁵⁸³ The Court, however, held that (1) requiring spousal consent was an attempt by the state to delegate a veto power over the decision of the woman and her doctor that the state itself could not exercise,⁵⁸⁴ (2) that no significant state interests justified the imposition of a blanket parental consent requirement as a condition of the obtaining of an abortion by an unmarried minor during the first 12 weeks of pregnancy,⁵⁸⁵ and (3) that a criminal provision requiring the attending physician to exercise all care and diligence to preserve the life and health of the fetus without regard to the stage of viability was inconsistent with Roe.⁵⁸⁶ The Court sustained provisions that required the woman’s written consent to an abortion with assurances that it is informed and freely given, and the Court also upheld mandatory reporting and recordkeeping for public health purposes with adequate assurances of confidentiality. Another provision that barred the use of the most commonly used method of abortion after the first 12 weeks of pregnancy was declared unconstitutional because, in the absence of another comparably safe technique, it did not qualify as a reasonable protection of maternal health and it instead operated to deny the vast majority of abortions after the first 12 weeks.⁵⁸⁷

In other rulings applying Roe, the Court struck down some requirements and upheld others. A requirement that all abortions performed after the first trimester be performed in a hospital was invalidated as imposing “a heavy, and unnecessary, burden on women’s access to a relatively inexpensive, otherwise accessible, and [at least during the first few weeks of the second trimester] safe abortion procedure.”⁵⁸⁸ The Court held, however, that a state may require that abortions be performed in hospitals or licensed outpatient clinics, as long as licensing standards do not “depart from accepted medical practice.”⁵⁸⁹ Various “informed consent” requirements were struck down as intruding upon the discretion of the physician, and as being aimed at discouraging abortions rather than at informing the pregnant woman’s decision.⁵⁹⁰ The Court also invalidated a 24hour waiting period following a woman’s written, informed consent.⁵⁹¹

On the other hand, the Court upheld a requirement that tissue removed in clinic abortions be submitted to a pathologist for examination, because the same requirements were imposed for in-hospital abortions and for almost all other in-hospital surgery.⁵⁹² The Court also upheld a requirement that a second physician be present at abortions performed after viability in order to assist in saving the life of the fetus.⁵⁹³ Further, the Court refused to extend Roe to require states to pay for abortions for the indigent, holding that neither due process nor equal protection requires government to use public funds for this purpose.⁵⁹⁴

The equal protection discussion in the public funding case bears closer examination because of its significance for later cases. The equal protection question arose because public funds were being made available for medical care to indigents, including costs attendant to childbirth, but not for expenses associated with abortions. Admittedly, discrimination based on a non-suspect class such as indigents does not generally compel strict scrutiny. However, the question arose as to whether such a distinction impinged upon the right to abortion, and thus should be subjected to heightened scrutiny. The Court rejected this argument and used a rational basis test, noting that the condition that was a barrier to getting an abortion—indigency— was not created or exacerbated by the government.

In reaching this finding the Court held that, while a state-created obstacle need not be absolute to be impermissible, it must at a minimum “unduly burden” the right to terminate a pregnancy. And, the Court held, to allocate public funds so as to further a state interest in normal childbirth does not create an absolute obstacle to obtaining and does not unduly burden the right.⁵⁹⁵ What is interesting about this holding is that the “undue burden” standard was to take on new significance when the Court began raising questions about the scope and even the legitimacy of Roe.

Although the Court expressly reaffirmed Roe v. Wade in 1983,⁵⁹⁶ its 1989 decision in Webster v. Reproductive Health Services⁵⁹⁷ signaled the beginning of a retrenchment. Webster upheld two aspects of a Missouri statute regulating abortions: a prohibition on the use of public facilities and employees to perform abortions not necessary to save the life of the mother; and a requirement that a physician, before performing an abortion on a fetus she has reason to believe has reached a gestational age of 20 weeks, make an actual viability determination.⁵⁹⁸ This retrenchment was also apparent in two 1990 cases in which the Court upheld both one-parent and two-parent notification requirements.⁵⁹⁹

Webster, however, exposed a split in the Court’s approach to Roe v. Wade. The plurality opinion by Chief Justice Rehnquist, joined in that part by Justices White and Kennedy, was highly critical of Roe, but found no occasion to overrule it. Instead, the plurality’s approach sought to water down Roe by applying a less stringent standard of review. For instance, the plurality found the viability testing requirement valid because it “permissibly furthers the State’s interest in protecting potential human life.”⁶⁰⁰ Justice O’Connor, however, concurred in the result based on her view that the requirement did not impose “an undue burden” on a woman’s right to an abortion, while Justice Scalia’s concurrence urged that Roe be overruled outright. Thus, when a Court majority later invalidated a Minnesota procedure requiring notification of both parents without judicial bypass, it did so because it did “not reasonably further any legitimate state interest.”⁶⁰¹

Roe was not confronted more directly in Webster because the viability testing requirement, as characterized by the plurality, merely asserted a state interest in protecting potential human life after viability, and hence did not challenge Roe’s ‘trimester framework.⁶⁰² Nonetheless, a majority of Justices appeared ready to reject a strict trimester approach. The plurality asserted a compelling state interest in protecting human life throughout pregnancy, rejecting the notion that the state interest “should come into existence only at the point of viability;”⁶⁰³ Justice O’Connor repeated her view that the trimester approach is “problematic;”⁶⁰⁴ and, as mentioned, Justice Scalia would have done away with Roe altogether.

Three years later, however, the Court invoked principles of stare decisis to reaffirm Roe’s “essential holding,” although it had by now abandoned the trimester approach and adopted Justice O’Connor’s “undue burden” test and Roe’s “essential holding.”⁶⁰⁵ According to the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey,⁶⁰⁶ the right to abortion has three parts. “First is a recognition of the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”

This restatement of Roe’s essentials, recognizing a legitimate state interest in protecting fetal life throughout pregnancy, necessarily eliminated the rigid trimester analysis permitting almost no regulation in the first trimester. Viability, however, still marked “the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions,”⁶⁰⁷ but less burdensome regulations could be applied before viability. “What is at stake,” the three-Justice plurality asserted, “is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.” Thus, unless an undue burden is imposed, states may adopt measures “designed to persuade [a woman] to choose childbirth over abortion.”⁶⁰⁸

Casey did, however, overturn earlier decisions striking down informed consent and 24-hour waiting periods.⁶⁰⁹ Given the state’s legitimate interests in protecting the life of the unborn and the health of the potential mother, and applying “undue burden” analysis, the three-Justice plurality found these requirements permissible.⁶¹⁰ After The Court also upheld application of an additional requirement that women under age 18 obtain the consent of one parent or avail themselves of a judicial bypass alternative.

On the other hand, the Court⁶¹¹ distinguished Pennsylvania’s spousal notification provision as constituting an undue burden on a woman’s right to choose an abortion. “A State may not give to a man the kind of dominion over his wife that parents exercise over their children” (and that men exercised over their wives at common law).⁶¹² Although there was an exception for a woman who believed that notifying her husband would subject her to bodily injury, this exception was not broad enough to cover other forms of abusive retaliation, e. g., psychological intimidation, bodily harm to children, or financial deprivation. To require a wife to notify her husband in spite of her fear of such abuse would unduly burden the wife’s liberty to decide whether to bear a child.

The passage of various state laws restricting so-called “partial birth abortions” gave observers an opportunity to see if the “undue burden” standard was in fact likely to lead to a major curtailment of the right to obtain an abortion. In Stenberg v. Carhart,⁶¹³ the Court reviewed a Nebraska statute that forbade “partially delivering vaginally a living unborn child before killing the unborn child and completing the delivery.” Although the state argued that the statute was directed only at an infrequently used procedure referred to as an “intact dilation and excavation,” the Court found that the statute could be interpreted to include the far more common procedure of “dilation and excavation.”⁶¹⁴ The Court also noted that the prohibition appeared to apply to abortions performed by these procedures throughout a pregnancy, including before viability of the fetus, and that the sole exception in the statute was to allow an abortion that was necessary to preserve the life of the mother.⁶¹⁵ Thus, the statute brought into question both the distinction maintained in Casey between pre-viability and post-viability abortions, and the oft-repeated language from Roe that provides that abortion restrictions must contain exceptions for situations where there is a threat to either the life or the health of a pregnant woman.⁶¹⁶ The Court, however, reaffirmed the central tenets of its previous abortion decisions, striking down the Nebraska law because its possible application to pre-viability abortions was too broad, and the exception for threats to the life of the mother was too narrow.⁶¹⁷

Only seven years later, however, the Supreme Court decided Gonzales v. Carhart,⁶¹⁸ which, although not formally overruling Stenberg, appeared to signal a change in how the Court would analyze limitations on abortion procedures. Of perhaps greatest significance is that Gonzales was the first case in which the Court upheld a statutory prohibition on a particular method of abortion. In Gonzales, the Court, by a 5–4 vote,⁶¹⁹ upheld a federal criminal statute that prohibited an overt act to “kill” a fetus where it had been intentionally “deliver[ed] . . . [so that] in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother.”⁶²⁰ The Court distinguished this federal statute from the Nebraska statute that it had struck down in Stenberg, holding that the federal statute applied only to the intentional performance of the less-common “intact dilation and excavation.” The Court found that the federal statute was not unconstitutionally vague because it provided “anatomical landmarks” that provided doctors with a reasonable opportunity to know what conduct it prohibited.⁶²¹ Further, the scienter requirement (that delivery of the fetus to these landmarks before fetal demise be intentional) was found to alleviate vagueness concerns.⁶²²

In a departure from the reasoning of Stenberg, the Court held that the failure of the federal statute to provide a health exception⁶²³ was justified by congressional findings that such a procedure was not necessary to protect the health of a mother. Noting that the Court has given “state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty,” the Court held that, at least in the context of a facial challenge, such an exception was not needed where “[t]here is documented medical disagreement whether the Act’s prohibition would ever impose significant health risks on women.”⁶²⁴ The Court did, however, leave open the possibility that as-applied challenges could still be made in individual cases.⁶²⁵

As in Stenberg, the prohibition considered in Gonzales extended to the performance of an abortion before the fetus was viable, thus directly raising the question of whether the statute imposed an “undue burden” on the right to obtain an abortion. Unlike the statute in Stenberg, however, the ban in Gonzales was limited to the far less common “intact dilation and excavation” procedure, and consequently did not impose the same burden as the Nebraska statute. The Court also found that there was a “rational basis” for the limitation, including governmental interests in the expression of “respect for the dignity of human life,” “protecting the integrity and ethics of the medical profession,” and the creation of a “dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion.”⁶²⁶

The Court revisited the question of whether particular restrictions place a “substantial obstacle” in the path of women seeking a pre-viability abortion and constitute an “undue burden” on abortion access in its 2016 decision in Whole Woman’s Health v. Hellerstedt.⁶²⁷ At issue in Whole Woman’s Health was a Texas law that required (1) physicians performing or inducing abortions to have active admitting privileges at a hospital located not more than thirty miles from the facility; and (2) the facility itself to meet the minimum standards for ambulatory surgical centers under Texas law.⁶²⁸ Texas asserted that these requirements served various purposes related to women’s health and the safety of abortion procedures, including ensuring that women have easy access to a hospital should complications arise during an abortion procedure and that abortion facilities meet heightened health and safety standards.⁶²⁹

In reviewing Texas’s law, the Whole Woman’s Health Court began by clarifying the underlying “undue burden” standard established in Casey. First, the Court noted that the relevant standard from Casey requires that courts engage in a balancing test to determine whether a law amounts to an unconstitutional restriction on abortion access by considering the “burdens a law imposes on abortion access together with the benefits those laws confer.”⁶³⁰ As a consequence, the Whole Woman’s Health articulation of the undue burden standard necessarily requires that courts “consider the existence or nonexistence of medical benefits” when considering whether a regulation constitutes an undue burden.⁶³¹ In such a consideration, a reviewing court, when evaluating an abortion regulation purporting to protect woman’s health, may need to closely scrutinize (1) the relative value of the protections afforded under the new law when compared to those prior to enactment⁶³² and (2) health regulations with respect to comparable medical procedures.⁶³³ Second, the Whole Woman’s Health decision rejected the argument that judicial scrutiny of abortion regulations was akin to rational basis review, concluding that courts should not defer to legislatures when resolving questions of medical uncertainty that arise with respect to abortion regulations.⁶³⁴ Instead, the Court found that reviewing courts are permitted to place “considerable weight upon evidence and argument presented in judicial proceedings” when evaluating legislation under the undue burden standard, notwithstanding contrary conclusions by the legislature.⁶³⁵

Applying these standards, the Whole Woman’s Health Court viewed the alleged benefits of the Texas requirements as inadequate to justify the challenged provisions under the precedent of Casey, given both the burdens they imposed upon women’s access to abortion and the benefits provided.⁶³⁶ Specifically as to the admitting privileges requirement, the Court determined that nothing in the underlying record showed that this requirement “advanced Texas’s legitimate interest in protecting women’s health” in any significant way as compared to Texas’s previous requirement that abortion clinics have a “working arrangement” with a doctor with admitting privileges.⁶³⁷ In particular, the Court rejected the argument that the admitting privileges requirements were justified to provide an “extra layer” of protection against abusive and unsafe abortion facilities, as the Court concluded that “[d]etermined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.”⁶³⁸ On the contrary, in the Court’s view, the evidentiary record suggested that the admitting-privileges requirement placed a substantial obstacle in the path of women’s access to abortion because (1) of the temporal proximity between the imposition of the requirement and the closing of a number of clinics once the requirement was enforced;⁶³⁹ and (2) the necessary consequence of the requirement of foreclosing abortion providers from obtaining such privileges for reasons having “nothing to do with ability to perform medical procedures.”⁶⁴⁰ In the view of the Court, the resulting facility closures that the Court attributed to the first challenged requirement meant fewer doctors, longer wait times, and increased crowding for women at the remaining facilities, and the closures also increased driving distances to an abortion clinic for some women, amounting to an undue burden.⁶⁴¹

Similarly as to the surgical-center requirement, the Whole Woman’s Health Court viewed the record as evidencing that the requirement “provides no benefits” in the context of abortions produced through medication and was “inappropriate” as to surgical abortions.⁶⁴² In so doing, the Court also noted disparities between the treatment of abortion facilities and facilities providing other medical procedures, such as colonoscopies, which the evidence suggested had greater risks than abortions.⁶⁴³ The Court viewed the underlying record as demonstrating that the surgical-center requirement would also have further reduced the number of abortion facilities in Texas to seven or eight and, in so doing, would have burdened women’s access to abortion in the same way as the admitting-privileges requirement (e. g. , creating crowding, increasing driving distances).⁶⁴⁴ Ultimately, the Court struck down the two provisions in the Texas law, concluding that the regulations in question imposed an undue burden on a “large fraction” of women for whom the provisions are an “actual” restriction.⁶⁴⁵

Privacy after Roe: Informational Privacy, Privacy of the Home or Personal Autonomy?.—The use of strict scrutiny to review intrusions on personal liberties in Roe v. Wade seemed to portend the Court’s striking down many other governmental restraints upon personal activities. These developments have not occurred, however, as the Court has been relatively cautious in extending the right to privacy. Part of the reason that the Court may have been slow to extend the rationale of Roe to other contexts was that “privacy” or the right “to be let alone” appears to encompass a number of different concepts arising from different parts of the Constitution, and the same combination of privacy rights and competing governmental interests are not necessarily implicated in other types of “private” conduct.

For instance, the term “privacy” itself seems to encompass at least two different but related issues. First, it relates to protecting against disclosure of personal information to the outside world, i. e. , the right of individuals to determine how much and what information about themselves is to be revealed to others.⁶⁴⁶ Second, it relates inward toward notions of personal autonomy, i. e. , the freedom of individuals to perform or not perform certain acts or subject themselves to certain experiences.⁶⁴⁷ These dual concepts, here referred to as “informational privacy” and “personal autonomy,” can easily arise in the same case, as government regulation of personal behavior can limit personal autonomy, while investigating and prosecuting such behavior can expose it to public scrutiny. Unfortunately, some of the Court’s cases identified violations of a right of privacy without necessarily making this distinction clear. While the main thrust of the Court’s fundamental-rights analysis appears to emphasize the personal autonomy aspect of privacy, now often phrased as “liberty” interests, a clear analytical framework for parsing of these two concepts in different contexts has not yet been established.

Another reason that “privacy” is difficult to define is that the right appears to arise from multiple sources. For instance, the Court first identified issues regarding informational privacy as specifically tied to various provisions of Bill of Rights, including the First and Fourth Amendments. In Griswold v. Connecticut,⁶⁴⁸ however, Justice Douglas found an independent right of privacy in the “penumbras” of these and other constitutional provisions. Although the parameters and limits of the right to privacy were not well delineated by that decision, which struck down a statute banning married couples from using contraceptives, the right appeared to be based on the notion that the government should not be allowed to gather information about private, personal activities.⁶⁴⁹ However, years later, when the closely related abortion cases were decided, the right to privacy being discussed was now characterized as a “liberty interest” protected under the Due Process Clause of the Fourteenth Amendment,⁶⁵⁰ and the basis for the right identified was more consistent with a concern for personal autonomy.

After Griswold, the Court had several opportunities to address and expand on the concept of Fourteenth Amendment informational privacy, but instead it returned to Fourth and Fifth Amendment principles to address official regulation of personal information.⁶⁵¹ For example, in United States v. Miller,⁶⁵² the Court, in evaluating the right of privacy of depositors to restrict government access to cancelled checks maintained by the bank, relied on whether there was an expectation of privacy under the Fourth Amendment.⁶⁵³ Also, the Court has held that First Amendment itself affords some limitation upon governmental acquisition of information, although only where the exposure of such information would violate freedom of association or the like.⁶⁵⁴

Similarly, in Fisher v. United States,⁶⁵⁵ the Court held that the Fifth Amendment’s Self-incrimination Clause did not prevent the IRS from obtaining income tax records prepared by accountants and in the hands of either the taxpayer or his attorney, no matter how incriminating, because the Amendment only protects against compelled testimonial self-incrimination. The Court noted that it “has never suggested that every invasion of privacy violates the privilege. Within the limits imposed by the language of the Fifth Amendment, which we necessarily observe, the privilege truly serves privacy interests; but the Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence that, in the Court’s view, did not involve compelled testimonial self-incrimination of some sort.”⁶⁵⁶ Furthermore, it wrote, “[w]e cannot cut the Fifth Amendment completely loose from the moorings of its language, and make it serve as a general protector of privacy—a word not mentioned in its text and a concept directly addressed in the Fourth Amendment.”⁶⁵⁷

So what remains of informational privacy? A cryptic opinion in Whalen v. Roe⁶⁵⁸ may indicate the Court’s continuing willingness to recognize privacy interests as independent constitutional rights. At issue was a state’s pervasive regulation of prescription drugs with abuse potential, and a centralized computer record-keeping system through which prescriptions, including patient identification, could be stored. The scheme was attacked on the basis that it invaded privacy interests against disclosure and privacy interests involving autonomy of persons in choosing whether to have the medication. The Court appeared to agree that both interests are protected, but because the scheme was surrounded with extensive security protection against disclosure beyond that necessary to achieve the purposes of the program it was not thought to “pose a sufficiently grievous threat to either interest to establish a constitutional violation.”⁶⁵⁹ Lower court cases have raised substantial questions as to whether this case established a “fundamental right” to informational privacy, and instead found that some as yet unspecified balancing test or intermediate level of scrutiny was at play.⁶⁶⁰

More than two decades after Whalen, the Court remains ambivalent about whether such a privacy right exists. In its 2011 decision in NASA v. Nelson, the Supreme Court unanimously ruled against 28 NASA workers who argued that the extensive background checks required to work at NASA facilities violated their constitutional privacy rights.⁶⁶¹ In so doing, the Court assumed without deciding that a right to informational privacy could be protected by the Constitution and instead held that the right does not prevent the government from asking reasonable questions in light of the government’s interest as an employer and in light of the statutory protections that provide meaningful checks against unwarranted disclosures.⁶⁶² As a result, the questions about the scope of the right to informational privacy suggested by Whalen remain.

The Court has also briefly considered yet another aspect of privacy—the idea that certain personal activities that were otherwise unprotected could obtain some level of constitutional protection by being performed in particular private locations, such as the home. In Stanley v. Georgia,⁶⁶³ the Court held that the government may not make private possession of obscene materials for private use a crime. Normally, investigation and apprehension of an individual for possessing pornography in the privacy of the home would raise obvious First Amendment free speech and the Fourth Amendment search and seizure issues. In this case, however, the material was obscenity, unprotected by the First Amendment, and the police had a valid search warrant, obviating Fourth Amendment concerns.⁶⁶⁴ Nonetheless, the Court based its decision upon a person’s protected right to receive what information and ideas he wishes, which derives from the “right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy,”⁶⁶⁵ and from the failure of the state to either justify protecting an individual from himself or to show empirical proof of such activity harming society.⁶⁶⁶

The potential significance of Stanley was enormous, as any number of illegal personal activities, such as drug use or illegal sex acts, could arguably be practiced in the privacy of one’s home with little apparent effect on others. Stanley, however, was quickly restricted to the particular facts of the case, namely possession of obscenity in the home.⁶⁶⁷ In Paris Adult Theatre I v. Slaton,⁶⁶⁸ which upheld the government’s power to prevent the showing of obscene material in an adult theater, the Court recognized that governmental interests in regulating private conduct could include the promotion of individual character and public morality, and improvement of the quality of life and “tone” of society. “It is argued that individual ‘free will’ must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual’s desire to see or acquire obscene plays, movies, and books. We do indeed base our society on certain assumptions that people have the capacity for free choice. Most exercises of individual free choice—those in politics, religion, and expression of ideas—are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. . . . [Many laws are enacted] to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition.”⁶⁶⁹

Furthermore, continued the Court in Paris Adult Theatre I, “[o]ur Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults is always beyond state regulation is a step we are unable to take. . . . The issue in this context goes beyond whether someone, or even the majority, considers the conduct depicted as ‘wrong’ or ‘sinful.’ The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize . . . the States’ ‘right . . . to maintain a decent society.’”⁶⁷⁰

Ultimately, the idea that acts should be protected not because of what they are, but because of where they are performed, may have begun and ended with Stanley. The limited impact of Stanley was reemphasized in Bowers v. Hardwick.⁶⁷¹ The Court in Bowers, finding that there is no protected right to engage in homosexual sodomy in the privacy of the home, held that Stanley did not implicitly create protection for “voluntary sexual conduct [in the home] between consenting adults.”⁶⁷² Instead, the Court found Stanley “firmly grounded in the First Amendment,”⁶⁷³ and noted that extending the reasoning of that case to homosexual conduct would result in protecting all voluntary sexual conduct between consenting adults, including adultery, incest, and other sexual crimes. Although Bowers has since been overruled by Lawrence v. Texas⁶⁷⁴ based on precepts of personal autonomy, the latter case did not appear to signal the resurrection of the doctrine of protecting activities occurring in private places.

So, what of the expansion of the right to privacy under the rubric of personal autonomy? The Court speaking in Roe in 1973 made it clear that, despite the importance of its decision, the protection of personal autonomy was limited to a relatively narrow range of behavior. “The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. . . . These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 U. S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U. S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U. S. 535, 541–42 (1942); contraception, Eisenstadt v. Baird, 405 U. S. at 453–54; id. at 460, 463–65 (White, J. , concurring in result); family relationships, Prince v. Massachusetts, 321 U. S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925), Meyer v. Nebraska, supra.”⁶⁷⁵

Despite the limiting language of Roe, the concept of privacy still retained sufficient strength to occasion major constitutional decisions. For instance, in the 1977 case of Carey v. Population Services Int’l,⁶⁷⁶ recognition of the “constitutional protection of individual autonomy in matters of childbearing” led the Court to invalidate a state statute that banned the distribution of contraceptives to adults except by licensed pharmacists and that forbade any person to sell or distribute contraceptives to a minor under 16.⁶⁷⁷ The Court significantly extended the Griswold-Baird line of cases so as to make the “decision whether or not to beget or bear a child” a “constitutionally protected right of privacy” interest that government may not burden without justifying the limitation by a compelling state interest and by a regulation narrowly drawn to express only that interest or interests.

For a time, the limits of the privacy doctrine were contained by the 1986 case of Bowers v. Hardwick,⁶⁷⁸ where the Court by a 5–4 vote roundly rejected the suggestion that the privacy cases protecting “family, marriage, or procreation” extend protection to private consensual homosexual sodomy,⁶⁷⁹ and also rejected the more comprehensive claim that the privacy cases “stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.”⁶⁸⁰ Heavy reliance was placed on the fact that prohibitions on sodomy have “ancient roots,” and on the fact that half of the states still prohibited the practice.⁶⁸¹ The privacy of the home does not protect all behavior from state regulation, and the Court was “unwilling to start down [the] road” of immunizing “voluntary sexual conduct between consenting adults.”⁶⁸² Interestingly, Justice Blackmun, in dissent, was most critical of the Court’s framing of the issue as one of homosexual sodomy, as the sodomy statute at issue was not so limited.⁶⁸³

Yet, Lawrence v. Texas,⁶⁸⁴ by overruling Bowers, brought the outer limits of noneconomic substantive due process into question by once again using the language of “privacy” rights. Citing the line of personal autonomy cases starting with Griswold, the Court found that sodomy laws directed at homosexuals “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. . . . When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”⁶⁸⁵

Although it quarreled with the Court’s finding in Bowers v. Hardwick that the proscription against homosexual behavior had “ancient roots,” Lawrence did not attempt to establish that such behavior was in fact historically condoned. This raises the question as to what limiting principles are available in evaluating future arguments based on personal autonomy. Although the Court seems to recognize that a state may have an interest in regulating personal relationships where there is a threat of “injury to a person or abuse of an institution the law protects,”⁶⁸⁶ it also seems to reject reliance on historical notions of morality as guides to what personal relationships are to be protected.⁶⁸⁷ Thus, the parameters for regulation of sexual conduct remain unclear.

For instance, the extent to which the government may regulate the sexual activities of minors has not been established.⁶⁸⁸ Analysis of this questions is hampered, however, because the Court has still not explained what about the particular facets of human relationships—marriage, family, procreation—gives rise to a protected liberty, and how indeed these factors vary significantly enough from other human relationships. The Court’s observation in Roe v. Wade “that only personal rights that can be deemed ‘fundamental’ are included in this guarantee of personal privacy,” occasioning justification by a “compelling” interest,⁶⁸⁹ provides little elucidation.⁶⁹⁰

Despite the Court’s decision in Lawrence, there is a question as to whether the development of noneconomic substantive due process will proceed under an expansive right of “privacy” or under the more limited “liberty” set out in Roe. There still appears to be a tendency to designate a right or interest as a right of privacy when the Court has already concluded that it is valid to extend an existing precedent of the privacy line of cases. Because much of this protection is also now settled to be a “liberty” protected under the due process clauses, however, the analytical significance of denominating the particular right or interest as an element of privacy seems open to question.

Family Relationships.— Starting with Meyer and Pierce,⁶⁹¹ the Court has held that “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”⁶⁹² For instance, the right to marry is a fundamental right protected by the Due Process Clause,⁶⁹³ and only “reasonable regulations” of marriage may be imposed.⁶⁹⁴ Thus, the Court has held that a state may not deny the right to marry to someone who has failed to meet a child support obligation, as the state already has numerous other means for exacting compliance with support obligations.⁶⁹⁵ In fact, any regulation that affects the ability to form, maintain, dissolve, or resolve conflicts within a family is subject to rigorous judicial scrutiny.

In 2015, in Obergefell v. Hodges, the Supreme Court clarified that the “right to marry” applies with “equal force” to same-sex couples, as it does to opposite-sex couples, holding that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.⁶⁹⁶ In so holding, the Court recognized marriage as being an institution of “both continuity and change,” and, as a consequence, recent shifts in public attitudes respecting gay individuals and more specifically same-sex marriage necessarily informed the Court’s conceptualization of the right to marry.⁶⁹⁷ More broadly, the Obergefell Court recognized that the right to marry is grounded in four “principles and traditions.” These involve the concepts that (1) marriage (and choosing whom to marry) is inherent to individual autonomy protected by the Constitution; (2) marriage is fundamental to supporting a union of committed individuals; (3) marriage safeguards children and families;⁶⁹⁸ and (4) marriage is essential to the nation’s social order, because it is at the heart of many legal benefits.⁶⁹⁹ With this conceptualization of the right to marry in mind, the Court found no difference between same- and opposite-sex couples with respect to any of the right’s four central principles, concluding that a denial of marital recognition to same-sex couples ultimately “demean[ed]” and “stigma[tized]” those couples and any children resulting from such partnerships.⁷⁰⁰ Given this conclusion, the Court held that, while limiting marriage to opposite-sex couples may have once seemed “natural,” such a limitation was inconsistent with the right to marriage inherent in the “liberty” of the person as protected by the Fourteenth Amendment.⁷⁰¹ The open question that remains respecting the substantive due process right to marriage post-Obergefell is whether the right of marriage, as broadly envisioned by the Court in the 2015 case, can extend to protect and require state recognition of other committed, autonomous relationships, such as polyamorous relationships.⁷⁰²

There is also a constitutional right to live together as a family,⁷⁰³ and this right is not limited to the nuclear family. Thus, a neighborhood that is zoned for single-family occupancy, and that defines “family” so as to prevent a grandmother from caring for two grandchildren of different children, was found to violate the Due Process Clause.⁷⁰⁴ And the concept of “family” may extend beyond the biological relationship to the situation of foster families, although the Court has acknowledged that such a claim raises complex and novel questions, and that the liberty interests may be limited.⁷⁰⁵ On the other hand, the Court has held that the presumption of legitimacy accorded to a child born to a married woman living with her husband is valid even to defeat the right of the child’s biological father to establish paternity and visitation rights.⁷⁰⁶

The Court has merely touched upon but not dealt definitively with the complex and novel questions raised by possible conflicts between parental rights and children’s rights.⁷⁰⁷ The Court has, however, imposed limits on the ability of a court to require that children be made available for visitation with grandparents and other third parties. In Troxel v. Granville,⁷⁰⁸ the Court evaluated a Washington State law that allowed “any person” to petition a court “at any time” to obtain visitation rights whenever visitation “may serve the best interests” of a child. Under this law, a child’s grandparents were awarded more visitation with a child than was desired by the sole surviving parent. A plurality of the Court, noting the “fundamental rights of parents to make decisions concerning the care, custody and control of their children,”⁷⁰⁹ reversed this decision, noting the lack of deference to the parent’s wishes and the contravention of the traditional presumption that a fit parent will act in the best interests of a child.

Liberty Interests of People with Mental Disabilities: Civil Commitment and Treatment.—The recognition of liberty rights for people with mental disabilities who are involuntarily committed or who voluntarily seek commitment to public institutions is potentially a major development in substantive due process. The states, pursuant to their parens patriae power, have a substantial interest in institutionalizing persons in need of care, both for the protection of such people themselves and for the protection of others.⁷¹⁰ A state, however, “cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”⁷¹¹ Moreover, a person who is constitutionally confined “enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.”⁷¹² Influential lower court decisions have also found a significant right to treatment⁷¹³ or “habilitation,”⁷¹⁴ although the Supreme Court’s approach in this area has been tentative.

For instance, in Youngberg v. Romeo, the Court recognized a liberty right to “minimally adequate or reasonable training to ensure safety and freedom from undue restraint.”⁷¹⁵ Although the lower court had agreed that residents at a state mental hospital are entitled to “such treatment as will afford them a reasonable opportunity to acquire and maintain those life skills necessary to cope as effectively as their capacities permit,”⁷¹⁶ the Supreme Court found that the plaintiff had reduced his claim to “training related to safety and freedom from restraints.”⁷¹⁷ But the Court’s concern for federalism, its reluctance to approve judicial activism in supervising institutions, and its recognition of the budgetary constraints associated with state provision of services caused it to hold that lower federal courts must defer to professional decision-making to determine what level of care was adequate. Professional decisions are presumptively valid and liability can be imposed “only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.”⁷¹⁸ Presumably, however, the difference between liability for damages and injunctive relief will still afford federal courts considerable latitude in enjoining institutions to better their services in the future, even if they cannot award damages for past failures.⁷¹⁹

The Court’s resolution of a case involving persistent sexual offenders suggests that state civil commitment systems, besides confining the dangerously mentally ill, may also act to incapacitate persons predisposed to engage in specific criminal behaviors. In Kansas v. Hendricks,⁷²⁰ the Court upheld a Kansas law that allowed civil commitment without a showing of “mental illness,” so that a defendant diagnosed as a pedophile could be committed based on his having a “mental abnormality” that made him “likely to engage in acts of sexual violence.” Although the Court minimized the use of this expanded nomenclature,⁷²¹ the concept of “mental abnormality” appears both more encompassing and less defined than the concept of “mental illness.” It is unclear how, or whether, the Court would distinguish this case from the indefinite civil commitment of other recidivists such as drug offenders. A subsequent opinion does seem to narrow the Hendricks holding so as to require an additional finding that the defendant would have difficulty controlling his or her behavior.⁷²²

Still other issues await exploration.⁷²³ Additionally, federal legislation is becoming extensive,⁷²⁴ and state legislative and judicial development of law is highly important because the Supreme Court looks to this law as one source of the interests that the Due Process Clause protects.⁷²⁵

“Right to Die”.—Although the popular term “right to die” has been used to describe the debate over end-of-life decisions, the underlying issues include a variety of legal concepts, some distinct and some overlapping. For instance, “right to die” could include issues of suicide, passive euthanasia (allowing a person to die by refusal or withdrawal of medical intervention), assisted suicide (providing a person the means of committing suicide), active euthanasia (killing another), and palliative care (providing comfort care which accelerates the death process). Recently, a new category has been suggested—physician-assisted suicide—that appears to be an uncertain blend of assisted suicide or active euthanasia undertaken by a licensed physician.

There has been little litigation of constitutional issues surrounding suicide generally, although Supreme Court dicta seems to favor the notion that the state has a constitutionally defensible interest in preserving the lives of healthy citizens.⁷²⁶ On the other hand, the right of a seriously ill person to terminate life-sustaining medical treatment has been addressed, but not squarely faced. In Cruzan v. Director, Missouri Department of Health,⁷²⁷ the Court, rather than directly addressing the issue, “assume[d]” that “a competent person [has] a constitutionally protected right to refuse lifesaving hydration and nutrition.”⁷²⁸ More importantly, however, a majority of the Justices separately declared that such a liberty interest exists.⁷²⁹ Yet, it is not clear how actively the Court would seek to protect this right from state regulation.

In Cruzan, which involved a patient in a persistent vegetative state, the Court upheld a state requirement that there must be “clear and convincing evidence” of a patient’s previously manifested wishes before nutrition and hydration could be withdrawn. Despite the existence of a presumed due process right, the Court held that a state is not required to follow the judgment of the family, the guardian, or “anyone but the patient herself” in making this decision.⁷³⁰ Thus, in the absence of clear and convincing evidence that the patient had expressed an interest not to be sustained in a persistent vegetative state, or that she had expressed a desire to have a surrogate make such a decision for her, the state may refuse to allow withdrawal of nutrition and hydration.⁷³¹

Despite the Court’s acceptance of such state requirements, the implications of the case are significant. First, the Court appears, without extensive analysis, to have adopted the position that refusing nutrition and hydration is the same as refusing other forms of medical treatment. Also, the Court seems ready to extend such right not only to terminally ill patients, but also to severely incapacitated patients whose condition has stabilized.⁷³² However, the Court made clear in a subsequent case, Washington v. Glucksberg,⁷³³ that it intends to draw a line between withdrawal of medical treatment and more active forms of intervention.

In Glucksberg, the Supreme Court rejected an argument that the Due Process Clause provides a terminally ill individual the right to seek and obtain a physician’s aid in committing suicide. Reviewing a challenge to a state statutory prohibition against assisted suicide, the Court noted that it moves with “utmost care” before breaking new ground in the area of liberty interests.⁷³⁴ The Court pointed out that suicide and assisted suicide have long been disfavored by the American judicial system, and courts have consistently distinguished between passively allowing death to occur and actively causing such death. The Court rejected the applicability of Cruzan and other liberty interest cases,⁷³⁵ noting that while many of the interests protected by the Due Process Clause involve personal autonomy, not all important, intimate, and personal decisions are so protected. By rejecting the notion that assisted suicide is constitutionally protected, the Court also appears to preclude constitutional protection for other forms of intervention in the death process, such as suicide or euthanasia.⁷³⁶