GOLDBERG v. KELLY, 397 U.S.

254 (1970)
397 U.S. 254
GOLDBERG, COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF
NEW YORK v. KELLY ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YO
RK No. 62.
Argued October 13, 1969
Decided March 23, 1970
Appellees are New York City residents receiving financial aid under the federall
y assisted Aid to Families with Dependent Children program or under New York Sta
te's general Home Relief program who allege that officials administering these p
rograms terminated, or were about to terminate, such aid without prior notice an
d hearing, thereby denying them due process of law. The District Court held that
only a pre-termination evidentiary hearing would satisfy the constitutional com
mand, and rejected the argument of the welfare officials that the combination of
the existing post-termination "fair hearing" and informal pre-termination revie
w was sufficient. Held:
1. Welfare benefits are a matter of statutory entitlement for persons qual
ified to receive them and procedural due process is applicable to their terminat
ion. Pp. 261-263.
2. The interest of the eligible recipient in the uninterrupted receipt of
public assistance, which provides him with essential food, clothing, housing, an
d medical care, coupled with the State's interest that his payments not be erron
eously terminated, clearly outweighs the State's competing concern to prevent an
y increase in its fiscal and administrative burdens. Pp. 264-266.
3. A pre-termination evidentiary hearing is necessary to provide the welfa
re recipient with procedural due process. Pp. 264, 266-271.
(a) Such hearing need not take the form of a judicial or quasi-judicial tr
ial, but the recipient must be provided with timely and adequate notice detailin
g the reasons for termination, and an effective opportunity to defend by confron
ting adverse witnesses and by presenting his own arguments and evidence orally b
efore the decision maker. Pp. 266-270. [397 U.S. 254, 255]
(b) Counsel need not be furnished at the pre-termination hearing, but the
recipient must be allowed to retain an attorney if he so desires. P. 270.
(c) The decisionmaker need not file a full opinion or make formal findings
of fact or conclusions of law but should state the reasons for his determinatio
n and indicate the evidence he relied on. P. 271.
(d) The decisionmaker must be impartial, and although prior involvement in
some aspects of a case will not necessarily bar a welfare official from acting
as decision maker, he should not have participated in making the determination u
nder review. P. 271.
294 F. Supp. 893, affirmed.
John J. Loflin, Jr., argued the cause for appellant. With him on the briefs were
J. Lee Rankin and Stanley Buchsbaum.
Lee A. Albert argued the cause for appellees. With him on the brief were Robert
Borsody, Martin Garbus, and David Diamond.
Briefs of amici curiae were filed by Solicitor General Griswold, Assistant Attor
ney General Ruckelshaus, and Robert V. Zener for the United States, and by Victo
r G. Rosenblum and Daniel Wm. Fessler for the National Institute for Education i
n Law and Poverty.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The question for decision is whether a State that terminates public assistance p
ayments to a particular recipient without affording him the opportunity for an e
videntiary hearing prior to termination denies the recipient procedural due proc
ess in violation of the Due Process Clause of the Fourteenth Amendment.
This action was brought in the District Court for the Southern District of New Y
ork by residents of New [397 U.S. 254, 256] York City receiving financial aid
under the federally assisted program of Aid to Families with Dependent Children
(AFDC) or under New York State's general Home Relief program. 1 Their complaint
alleged that the New York State and New York City officials administering these
programs terminated, or were about to terminate, such aid without prior notice a
nd hearing, thereby denying them due process of law. 2 At the time [397 U.S. 254
, 257] the suits were filed there was no requirement of prior notice or hearin
g of any kind before termination of financial aid. However, the State and city a
dopted procedures for notice and hearing after the suits were brought, and the p
laintiffs, appellees here, then challenged the constitutional adequacy of those
procedures.
The State Commissioner of Social Services amended the State Department of Social
Services' Official Regulations to require that local social services officials
proposing to discontinue or suspend a recipient's financial aid do so according
to a procedure that conforms to either subdivision (a) or subdivision (b) of 351
.26 of the regulations as amended. 3 The City of New York [397 U.S. 254, 258]
elected to promulgate a local procedure according to subdivision (b). That subdi
vision, so far as here pertinent, provides that the local procedure must include
the giving of notice to the recipient of the reasons for a proposed discontinua
nce or suspension at least seven days prior to its effective date, with notice a
lso that upon request the recipient may have the proposal reviewed by a local we
lfare official holding a position superior to that of the supervisor who approve
d the proposed discontinuance or suspension, and, further, that the recipient ma
y submit, for purposes of the review, a written statement to demonstrate why his
grant should not be discontinued or suspended. The decision by the reviewing of
ficial whether to discontinue or suspend aid must be made expeditiously, with wr
itten notice of the decision to the recipient. The section further expressly pro
vides that "[a]ssistance shall not be discontinued or suspended prior to the dat
e such notice of decision is sent to the recipient and his representative, if an
y, or prior to the proposed effective date of discontinuance or suspension, whic
hever occurs later."
Pursuant to subdivision (b), the New York City Department of Social Services pro
mulgated Procedure No. 68-18. A caseworker who has doubts about the recipient's
continued eligibility must first discuss them with the recipient. If the casewor
ker concludes that the recipient is no longer eligible, he recommends terminatio
n [397 U.S. 254, 259] of aid to a unit supervisor. If the latter concurs, he s
ends the recipient a letter stating the reasons for proposing to terminate aid a
nd notifying him that within seven days he may request that a higher official re
view the record, and may support the request with a written statement prepared p
ersonally or with the aid of an attorney or other person. If the reviewing offic
ial affirms the determination of ineligibility, aid is stopped immediately and t
he recipient is informed by letter of the reasons for the action. Appellees' cha
llenge to this procedure emphasizes the absence of any provisions for the person
al appearance of the recipient before the reviewing official, for oral presentat
ion of evidence, and for confrontation and cross-examination of adverse witnesse
s. 4 However, the letter does inform the recipient that he may request a post-te
rmination "fair hearing." 5 This is a proceeding before an independent [397 U.S.
254, 260] state hearing officer at which the recipient may appear personally,
offer oral evidence, confront and cross-examine the witnesses against him, and
have a record made of the hearing. If the recipient prevails at the "fair hearin
g" he is paid all funds erroneously withheld. 6 HEW Handbook, pt. IV, 6200-6500;
18 NYCRR 84.2-84.23. A recipient whose aid is not restored by a "fair hearing"
decision may have judicial review. N. Y. Civil Practice Law and Rules, Art. 78 (
1963). The recipient is so notified, 18 NYCRR 84.16.
I
The constitutional issue to be decided, therefore, is the narrow one whether the
Due Process Clause requires that the recipient be afforded an evidentiary heari
ng before the termination of benefits. 7 The District Court held [397 U.S. 254,
261] that only a pre-termination evidentiary hearing would satisfy the constit
utional command, and rejected the argument of the state and city officials that
the combination of the post-termination "fair hearing" with the informal pre-ter
mination review disposed of all due process claims. The court said: "While post-
termination review is relevant, there is one overpowering fact which controls he
re. By hypothesis, a welfare recipient is destitute, without funds or assets. .
. . Suffice it to say that to cut off a welfare recipient in the face of . . . `
brutal need' without a prior hearing of some sort is unconscionable, unless over
whelming considerations justify it." Kelly v. Wyman, 294 F. Supp. 893, 899, 900
(1968). The court rejected the argument that the need to protect the public's ta
x revenues supplied the requisite "overwhelming consideration." "Against the jus
tified desire to protect public funds must be weighed the individual's over-powe
ring need in this unique situation not to be wrongfully deprived of assistance .
. . . While the problem of additional expense must be kept in mind, it does not
justify denying a hearing meeting the ordinary standards of due process. Under
all the circumstances, we hold that due process requires an adequate hearing bef
ore termination of welfare benefits, and the fact that there is a later constitu
tionally fair proceeding does not alter the result." Id., at 901. Although state
officials were party defendants in the action, only the Commissioner of Social
Services of the City of New York appealed. We noted probable jurisdiction, 394 U
.S. 971 (1969), to decide important issues that have been the subject of disagre
ement in principle between the three-judge court in the present case and that co
nvened in Wheeler v. Montgomery, No. 14, post, p. 280, also decided today. We af
firm.
Appellant does not contend that procedural due process is not applicable to the
termination of welfare benefits. [397 U.S. 254, 262] Such benefits are a matte
r of statutory entitlement for persons qualified to receive them. 8 Their termin
ation involves state action that adjudicates important rights. The constitutiona
l challenge cannot be answered by an argument that public assistance benefits ar
e "a `privilege' and not a `right.'" Shapiro v. Thompson, 394 U.S. 618, 627 n. 6
(1969). Relevant constitutional restraints apply as much to the withdrawal of p
ublic assistance benefits as to disqualification for unemployment compensation,
Sherbert v. Verner, 374 U.S. 398 (1963); or to denial of a tax exemption, Speise
r v. Randall, 357 U.S. 513 (1958); or to discharge from public employment, Sloch
ower v. Board of Higher Education, 350 U.S. 551 (1956). 9 The extent to which pr
ocedural due process [397 U.S. 254, 263] must be afforded the recipient is inf
luenced by the extent to which he may be "condemned to suffer grievous loss," Jo
int Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951) (Frankfu
rter, J., concurring), and depends upon whether the recipient's interest in avoi
ding that loss outweighs the governmental interest in summary adjudication. Acco
rdingly, as we said in Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S.
886, 895 (1961), "consideration of what procedures due process may require unde
r any given set of circumstances must begin with a determination of the precise
nature of the government function involved as well as of the private interest th
at has been affected by governmental action." See also Hannah v. Larche, 363 U.S
. 420, 440 , 442 (1960).
It is true, of course, that some governmental benefits may be administratively t
erminated without affording the recipient a pre-termination evidentiary hearing.
10 [397 U.S. 254, 264] But we agree with the District Court that when welfa
re is discontinued, only a pre-termination evidentiary hearing provides the reci
pient with procedural due process. Cf. Sniadach v. Family Finance Corp., 395 U.S
. 337 (1969). For qualified recipients, welfare provides the means to obtain ess
ential food, clothing, housing, and medical care. 11 Cf. Nash v. Florida Industr
ial Commission, 389 U.S. 235, 239 (1967). Thus the crucial factor in this contex
t - a factor not present in the case of the blacklisted government contractor, t
he discharged government employee, the taxpayer denied a tax exemption, or virtu
ally anyone else whose governmental entitlements are ended - is that termination
of aid pending resolution of a controversy over eligibility may deprive an elig
ible recipient of the very means by which to live while he waits. Since he lacks
independent resources, his situation becomes immediately desperate. His need to
concentrate upon finding the means for daily subsistence, in turn, adversely af
fects his ability to seek redress from the welfare bureaucracy. 12
Moreover, important governmental interests are promoted by affording recipients
a pre-termination evidentiary hearing. From its founding the Nation's basic [397
U.S. 254, 265] commitment has been to foster the dignity and well-being of al
l persons within its borders. We have come to recognize that forces not within t
he control of the poor contribute to their poverty. 13 This perception, against
the background of our traditions, has significantly influenced the development o
f the contemporary public assistance system. Welfare, by meeting the basic deman
ds of subsistence, can help bring within the reach of the poor the same opportun
ities that are available to others to participate meaningfully in the life of th
e community. At the same time, welfare guards against the societal malaise that
may flow from a widespread sense of unjustified frustration and insecurity. Publ
ic assistance, then, is not mere charity, but a means to "promote the general We
lfare, and secure the Blessings of Liberty to ourselves and our Posterity." The
same governmental interests that counsel the provision of welfare, counsel as we
ll its uninterrupted provision to those eligible to receive it; pre-termination
evidentiary hearings are indispensable to that end.
Appellant does not challenge the force of these considerations but argues that t
hey are outweighed by countervailing governmental interests in conserving fiscal
and administrative resources. These interests, the argument goes, justify the d
elay of any evidentiary hearing until after discontinuance of the grants. Summar
y adjudication protects the public fisc by stopping payments promptly upon disco
very of reason to believe that a recipient is no longer eligible. Since most ter
minations are accepted without challenge, summary adjudication also conserves bo
th the fisc and administrative time and energy by reducing the number of evident
iary hearings actually held. [397 U.S. 254, 266]
We agree with the District Court, however, that these governmental interests are
not overriding in the welfare context. The requirement of a prior hearing doubt
less involves some greater expense, and the benefits paid to ineligible recipien
ts pending decision at the hearing probably cannot be recouped, since these reci
pients are likely to be judgment-proof. But the State is not without weapons to
minimize these increased costs. Much of the drain on fiscal and administrative r
esources can be reduced by developing procedures for prompt pre-termination hear
ings and by skillful use of personnel and facilities. Indeed, the very provision
for a post-termination evidentiary hearing in New York's Home Relief program is
itself cogent evidence that the State recognizes the primacy of the public inte
rest in correct eligibility determinations and therefore in the provision of pro
cedural safeguards. Thus, the interest of the eligible recipient in uninterrupte
d receipt of public assistance, coupled with the State's interest that his payme
nts not be erroneously terminated, clearly outweighs the State's competing conce
rn to prevent any increase in its fiscal and administrative burdens. As the Dist
rict Court correctly concluded, "[t]he stakes are simply too high for the welfar
e recipient, and the possibility for honest error or irritable misjudgment too g
reat, to allow termination of aid without giving the recipient a chance, if he s
o desires, to be fully informed of the case against him so that he may contest i
ts basis and produce evidence in rebuttal." 294 F. Supp., at 904-905.
II
We also agree with the District Court, however, that the pre-termination hearing
need not take the form of a judicial or quasi-judicial trial. We bear in mind t
hat the statutory "fair hearing" will provide the recipient [397 U.S. 254, 267]
with a full administrative review. 14 Accordingly, the pre-termination hearing
has one function only: to produce an initial determination of the validity of t
he welfare department's grounds for discontinuance of payments in order to prote
ct a recipient against an erroneous termination of his benefits. Cf. Sniadach v.
Family Finance Corp., 395 U.S. 337, 343 (1969) (HARLAN, J., concurring). Thus,
a complete record and a comprehensive opinion, which would serve primarily to fa
cilitate judicial review and to guide future decisions, need not be provided at
the pre-termination stage. We recognize, too, that both welfare authorities and
recipients have an interest in relatively speedy resolution of questions of elig
ibility, that they are used to dealing with one another informally, and that som
e welfare departments have very burdensome caseloads. These considerations justi
fy the limitation of the pre-termination hearing to minimum procedural safeguard
s, adapted to the particular characteristics of welfare recipients, and to the l
imited nature of the controversies to be resolved. We wish to add that we, no le
ss than the dissenters, recognize the importance of not imposing upon the States
or the Federal Government in this developing field of law any procedural requir
ements beyond those demanded by rudimentary due process.
"The fundamental requisite of due process of law is the opportunity to be
heard." Grannis v. Ordean, 234 U.S. 385, 394 (1914). The hearing must be "at a m
eaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 55
2 (1965). In the present context these principles require that a recipient have
timely and adequate notice detailing the reasons for a [397 U.S. 254, 268] pro
posed termination, and an effective opportunity to defend by confronting any adv
erse witnesses and by presenting his own arguments and evidence orally. These ri
ghts are important in cases such as those before us, where recipients have chall
enged proposed terminations as resting on incorrect or misleading factual premis
es or on misapplication of rules or policies to the facts of particular cases. 1
5
We are not prepared to say that the seven-day notice currently provided by New Y
ork City is constitutionally insufficient per se, although there may be cases wh
ere fairness would require that a longer time be given. Nor do we see any consti
tutional deficiency in the content or form of the notice. New York employs both
a letter and a personal conference with a caseworker to inform a recipient of th
e precise questions raised about his continued eligibility. Evidently the recipi
ent is told the legal and factual bases for the Department's doubts. This combin
ation is probably the most effective method of communicating with recipients.
The city's procedures presently do not permit recipients to appear personally wi
th or without counsel before the official who finally determines continued eligi
bility. Thus a recipient is not permitted to present evidence to that official o
rally, or to confront or cross-examine adverse witnesses. These omissions are fa
tal to the constitutional adequacy of the procedures.
The opportunity to be heard must be tailored to the [397 U.S. 254, 269] capaci
ties and circumstances of those who are to be heard. 16 It is not enough that a
welfare recipient may present his position to the decision maker in writing or s
econdhand through his caseworker. Written submissions are an unrealistic option
for most recipients, who lack the educational attainment necessary to write effe
ctively and who cannot obtain professional assistance. Moreover, written submiss
ions do not afford the flexibility of oral presentations; they do not permit the
recipient to mold his argument to the issues the decision maker appears to rega
rd as important. Particularly where credibility and veracity are at issue, as th
ey must be in many termination proceedings, written submissions are a wholly uns
atisfactory basis for decision. The secondhand presentation to the decisionmaker
by the caseworker has its own deficiencies; since the caseworker usually gather
s the facts upon which the charge of ineligibility rests, the presentation of th
e recipient's side of the controversy cannot safely be left to him. Therefore a
recipient must be allowed to state his position orally. Informal procedures will
suffice; in this context due process does not require a particular order of pro
of or mode of offering evidence. Cf. HEW Handbook, pt. IV, 6400 (a).
In almost every setting where important decisions turn on questions of fact, due
process requires an opportunity to confront and cross-examine adverse witnesses
. E. g., ICC v. Louisville & N. R. Co., 227 U.S. 88, 93 -94 (1913); Willner v. C
ommittee on Character & Fitness, 373 U.S. 96, 103 -104 (1963). What we said in [
397 U.S. 254, 270] Greene v. McElroy, 360 U.S. 474, 496 -497 (1959), is partic
ularly pertinent here:
"Certain principles have remained relatively immutable in our jurisprudenc
e. One of these is that where governmental action seriously injures an individua
l, and the reasonableness of the action depends on fact findings, the evidence u
sed to prove the Government's case must be disclosed to the individual so that h
e has an opportunity to show that it is untrue. While this is important in the c
ase of documentary evidence, it is even more important where the evidence consis
ts of the testimony of individuals whose memory might be faulty or who, in fact,
might be perjurers or persons motivated by malice, vindictiveness, intolerance,
prejudice, or jealousy. We have formalized these protections in the requirement
s of confrontation and cross-examination. They have ancient roots. They find exp
ression in the Sixth Amendment . . . . This Court has been zealous to protect th
ese rights from erosion. It has spoken out not only in criminal cases, . . . but
also in all types of cases where administrative . . . actions were under scruti
ny."
Welfare recipients must therefore be given an opportunity to confront and cross-
examine the witnesses relied on by the department.
"The right to be heard would be, in many cases, of little avail if it did
not comprehend the right to be heard by counsel." Powell v. Alabama, 287 U.S. 45
, 68 -69 (1932). We do not say that counsel must be provided at the pre-terminat
ion hearing, but only that the recipient must be allowed to retain an attorney i
f he so desires. Counsel can help delineate the issues, present the factual cont
entions in an orderly manner, conduct cross-examination, and generally safeguard
the [397 U.S. 254, 271] interests of the recipient. We do not anticipate that
this assistance will unduly prolong or otherwise encumber the hearing. Evidentl
y HEW has reached the same conclusion. See 45 CFR 205.10, 34 Fed. Reg. 1144 (196
9); 45 CFR 220.25, 34 Fed. Reg. 13595 (1969).
Finally, the decisionmaker's conclusion as to a recipient's eligibility must res
t solely on the legal rules and evidence adduced at the hearing. Ohio Bell Tel.
Co. v. PUC, 301 U.S. 292 (1937); United States v. Abilene & S. R. Co., 265 U.S.
274, 288 -289 (1924). To demonstrate compliance with this elementary requirement
, the decision maker should state the reasons for his determination and indicate
the evidence he relied on, cf. Wichita R. & Light Co. v. PUC, 260 U.S. 48, 57 -
59 (1922), though his statement need not amount to a full opinion or even formal
findings of fact and conclusions of law. And, of course, an impartial decision
maker is essential. Cf. In re Murchison, 349 U.S. 133 (1955); Wong Yang Sung v.
McGrath, 339 U.S. 33, 45 -46 (1950). We agree with the District Court that prior
involvement in some aspects of a case will not necessarily bar a welfare offici
al from acting as a decision maker. He should not, however, have participated in
making the determination under review.
Affirmed.
[For dissenting opinion of MR. CHIEF JUSTICE BURGER, see post, p. 282.]
[For dissenting opinion of MR. JUSTICE STEWART, see post, p. 285.]
Footnotes
[ Footnote 1 ] AFDC was established by the Social Security Act of 1935, 49 Stat.
627, as amended, 42 U.S.C. 601-610 (1964 ed. and Supp. IV). It is a categorical
assistance program supported by federal grants-in-aid but administered by the S
tates according to regulations of the Secretary of Health, Education, and Welfar
e. See N. Y. Social Welfare Law 343-362 (1966). We considered other aspects of A
FDC in King v. Smith, 392 U.S. 309 (1968), and in Shapiro v. Thompson, 394 U.S.
618 (1969). Home Relief is a general assistance program financed and administere
d solely by New York state and local governments. N. Y. Social Welfare Law 157-1
65 (1966), since July 1, 1967, Social Services Law 157-166. It assists any perso
n unable to support himself or to secure support from other sources. Id., 158.
[ Footnote 2 ] Two suits were brought and consolidated in the District Court. Th
e named plaintiffs were 20 in number, including intervenors. Fourteen had been o
r were about to be cut off from AFDC, and six from Home Relief. During the cours
e of this litigation most, though not all, of the plaintiffs either received a "
fair hearing" (see infra, at 259-260) or were restored to the rolls without a he
aring. However, even in many of the cases where payments have been resumed, the
underlying questions of eligibility that resulted in the bringing of this suit h
ave not been resolved. For example, Mrs. Altagracia Guzman alleged that she was
in danger of losing AFDC payments for failure to cooperate with the City Departm
ent of Social Services in suing her estranged husband. She contended that the de
partmental policy requiring such cooperation was inapplicable to the facts of he
r case. The record shows that payments to Mrs. Guzman have not been terminated,
but there is no indication that the basic dispute over her duty to cooperate has
been resolved, or that the alleged danger of termination has been removed. Home
Relief payments to Juan DeJesus were terminated because he refused to accept co
unselling and rehabilitation for drug addiction. Mr. DeJesus maintains that he [
397 U.S. 254, 257] does not use drugs. His payments were restored the day afte
r his complaint was filed. But there is nothing in the record to indicate that t
he underlying factual dispute in his case has been settled.
[ Footnote 3 ] The adoption in February 1968 and the amendment in April of Regul
ation 351.26 coincided with or followed several revisions by the Department of H
ealth, Education, and Welfare of its regulations implementing 42 U.S.C. 602 (a)
(4), which is the provision of the Social Security Act that requires a State to
afford a "fair hearing" to any recipient of aid under a federally assisted progr
am before termination of his aid becomes final. This requirement is satisfied by
a post-termination "fair hearing" under regulations presently in effect. See HE
W Handbook of Public Assistance Administration (hereafter HEW Handbook), pt. IV,
6200-6400. A new HEW regulation, 34 Fed. Reg. 1144 (1969), now scheduled to tak
e effect in July 1970, 34 Fed. Reg. 13595 (1969), would require continuation of
AFDC payments until the final decision after a "fair hearing" and would give rec
ipients a right to appointed counsel at "fair hearings." 45 CFR 205.10, 34 Fed.
Reg. 1144 (1969); 45 CFR 220.25, 34 Fed. Reg. 1356 (1969). For the safeguards sp
ecified at such "fair hearings" see HEW Handbook, pt. IV, 6200-6400. Another rec
ent regulation now in effect requires a local agency administering AFDC to give
"advance notice of questions it has about an individual's eligibility so that a
recipient has an opportunity to discuss his situation before receiving formal wr
itten notice of reduction in payment or termination of assistance." Id., pt. IV,
2300 (d) (5). This case presents no issue of the validity or construction [397
U.S. 254, 258] of the federal regulations. It is only subdivision (b) of 351.2
6 of the New York State regulations and implementing procedure 68-18 of New York
City that pose the constitutional question before us. Cf. Shapiro v. Thompson,
394 U.S. 618, 641 (1969). Even assuming that the constitutional question might b
e avoided in the context of AFDC by construction of the Social Security Act or o
f the present federal regulations thereunder, or by waiting for the new regulati
ons to become effective, the question must be faced and decided in the context o
f New York's Home Relief program, to which the procedures also apply.
[ Footnote 4 ] These omissions contrast with the provisions of subdivision (a) o
f 351.26, the validity of which is not at issue in this Court. That subdivision
also requires written notification to the recipient at least seven days prior to
the proposed effective date of the reasons for the proposed discontinuance or s
uspension. However, the notification must further advise the recipient that if h
e makes a request therefore he will be afforded an opportunity to appear at a ti
me and place indicated before the official identified in the notice, who will re
view his case with him and allow him to present such written and oral evidence a
s the recipient may have to demonstrate why aid should not be discontinued or su
spended. The District Court assumed that subdivision (a) would be construed to a
fford rights of confrontation and cross-examination and a decision based solely
on the record. 294 F. Supp. 893, 906-907 (1968).
[ Footnote 5 ] N. Y. Social Welfare Law 353 (2) (1966) provides for a post-termi
nation "fair hearing" pursuant to 42 U.S.C. 602 (a) (4). See n. 3, supra. Althou
gh the District Court noted that HEW had raised some objections to the New York
"fair hearing" procedures, 294 F. Supp., at 898 n. 9, these objections are not a
t issue in this Court. Shortly before this suit was filed, New York State adopte
d a similar provision for a "fair hearing" in terminations [397 U.S. 254, 260]
of Home Relief. 18 NYCRR 84.2-84.23. In both AFDC and Home Relief the "fair hea
ring" must be held within 10 working days of the request, 84.6, with decision wi
thin 12 working days thereafter, 84.15. It was conceded in oral argument that th
ese time limits are not in fact observed.
[ Footnote 6 ] Current HEW regulations require the States to make full retroacti
ve payments (with federal matching funds) whenever a "fair hearing" results in a
reversal of a termination of assistance. HEW Handbook, pt. IV, 6200 (k), 6300 (
g), 6500 (a); see 18 NYCRR 358.8. Under New York State regulations retroactive p
ayments can also be made, with certain limitations, to correct an erroneous term
ination discovered before a "fair hearing" has been held. 18 NYCRR 351.27. HEW r
egulations also authorize, but do not require, the States to continue AFDC payme
nts without loss of federal matching funds pending completion of a "fair hearing
." HEW Handbook, pt. IV, 6500 (b). The new HEW regulations presently scheduled t
o become effective July 1, 1970, will supersede all of these provisions. See n.
3, supra.
[ Footnote 7 ] Appellant does not question the recipient's due process right to
evidentiary review after termination. For a general discussion of the provision
of an evidentiary hearing prior to termination, see Comment, The Constitutional
Minimum for the Termination of Welfare Benefits: The Need for and Requirements o
f a Prior Hearing, 68 Mich. L. Rev. 112 (1969).
[ Footnote 8 ] It may be realistic today to regard welfare entitlements as more
like "property" than a "gratuity." Much of the existing wealth in this country t
akes the form of rights that do not fall within traditional common-law concepts
of property. It has been aptly noted that "[s]ociety today is built around entit
lement. The automobile dealer has his franchise, the doctor and lawyer their pro
fessional licenses, the worker his union membership, contract, and pension right
s, the executive his contract and stock options; all are devices to aid security
 and independence. Many of the most important of these entitlements now flow fro
m government: subsidies to farmers and businessmen, routes for airlines and chan
nels for television stations; long term contracts for defense, space, and educat
ion; social security pensions for individuals. Such sources of security, whether
private or public, are no longer regarded as luxuries or gratuities; to the rec
ipients they are essentials, fully deserved, and in no sense a form of charity.
It is only the poor whose entitlements, although recognized by public policy, ha
ve not been effectively enforced." Reich, Individual Rights and Social Welfare:
The Emerging Legal Issues, 74 Yale L. J. 1245, 1255 (1965). See also Reich, The
New Property, 73 Yale L. J. 733 (1964).
[ Footnote 9 ] See also Goldsmith v. United States Board of Tax Appeals, 270 U.S
. 117 (1926) (right of a certified public accountant to practice before the Boar
d of Tax Appeals); Hornsby v. Allen, 326 F.2d 605 [397 U.S. 254, 263] (C. A. 5
th Cir. 1964) (right to obtain a retail liquor store license); Dixon v. Alabama
State Board of Education, 294 F.2d 150 (C. A. 5th Cir.), cert. denied, 368 U.S.
930 (1961) (right to attend a public college).
[ Footnote 10 ] One Court of Appeals has stated: "In a wide variety of situation
s, it has long been recognized that where harm to the public is threatened, and
the private interest infringed is reasonably deemed to be of less importance, an
official body can take summary action pending a later hearing." R. A. Holman &
Co. v. SEC, 112 U.S. App. D.C. 43, 47, 299 F.2d 127, 131, cert. denied, 370 U.S.
911 (1962) (suspension of exemption from stock registration requirement). See a
lso, for example, Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (1950) (se
izure of mislabeled vitamin product); North American Cold Storage Co. v. Chicago
, 211 U.S. 306 (1908) (seizure of food not fit for human use); Yakus v. United S
tates, 321 U.S. 414 (1944) (adoption of wartime price regulations); Gonzalez v.
Freeman, 118 U.S. App. D.C. 180, 334 F.2d 570 (1964) (disqualification of a cont
ractor to do business with the Government). In Cafeteria & Restaurant Workers Un
ion v. McElroy, supra, at 896, summary dismissal of a public employee was upheld
[397 U.S. 254, 264] because "[i]n [its] proprietary military capacity, the Fe
deral Government . . . has traditionally exercised unfettered control," and beca
use the case involved the Government's "dispatch of its own internal affairs." C
f. Perkins v. Lukens Steel Co., 310 U.S. 113 (1940).
[ Footnote 11 ] Administrative determination that a person is ineligible for wel
fare may also render him ineligible for participation in state-financed medical
programs. See N. Y. Social Welfare Law 366 (1966).
[ Footnote 12 ] His impaired adversary position is particularly telling in light
of the welfare bureaucracy's difficulties in reaching correct decisions on elig
ibility. See Comment, Due Process and the Right to a Prior Hearing in Welfare Ca
ses, 37 Ford. L. Rev. 604, 610-611 (1969).
[ Footnote 13 ] See, e. g., Reich, supra, n. 8, 74 Yale L. J., at 1255.
[ Footnote 14 ] Due process does not, of course, require two hearings. If, for e
xample, a State simply wishes to continue benefits until after a "fair" hearing
there will be no need for a preliminary hearing.
[ Footnote 15 ] This case presents no question requiring our determination wheth
er due process requires only an opportunity for written submission, or an opport
unity both for written submission and oral argument, where there are no factual
issues in dispute or where the application of the rule of law is not intertwined
with factual issues. See FCC v. WJR, 337 U.S. 265, 275 -277 (1949).
[ Footnote 16 ] "[T]he prosecution of an appeal demands a degree of security, aw
areness, tenacity, and ability which few dependent people have." Wedemeyer & Moo
re, The American Welfare System, 54 Calif. L. Rev. 326, 342 (1966).
MR. JUSTICE BLACK, dissenting.
In the last half century the United States, along with many, perhaps most, other
nations of the world, has moved far toward becoming a welfare state, that is, a
nation that for one reason or another taxes its most [397 U.S. 254, 272] affl
uent people to help support, feed, clothe, and shelter its less fortunate citize
ns. The result is that today more than nine million men, women, and children in
the United States receive some kind of state or federally financed public assist
ance in the form of allowances or gratuities, generally paid them periodically,
usually by the week, month, or quarter. 1 Since these gratuities are paid on the
basis of need, the list of recipients is not static, and some people go off the
lists and others are added from time to time. These ever-changing lists put a c
onstant administrative burden on government and it certainly could not have reas
onably anticipated that this burden would include the additional procedural expe
nse imposed by the Court today.
The dilemma of the ever-increasing poor in the midst of constantly growing afflu
ence presses upon us and must inevitably be met within the framework of our demo
cratic constitutional government, if our system is to survive as such. It was la
rgely to escape just such pressing economic problems and attendant government re
pression that people from Europe, Asia, and other areas settled this country and
formed our Nation. Many of those settlers had personally suffered from persecut
ions of various kinds and wanted to get away from governments that had unrestrai
ned powers to make life miserable for their citizens. It was for this reason, or
so I believe, that on reaching these new lands the early settlers undertook to
curb their governments by confining their powers [397 U.S. 254, 273] within wr
itten boundaries, which eventually became written constitutions. 2 They wrote th
eir basic charters as nearly as men's collective wisdom could do so as to procla
im to their people and their officials an emphatic command that: "Thus far and n
o farther shall you go; and where we neither delegate powers to you, nor prohibi
t your exercise of them, we the people are left free." 3
Representatives of the people of the Thirteen Original Colonies spent long, hot
months in the summer of 1787 in Philadelphia, Pennsylvania, creating a governmen
t of limited powers. They divided it into three departments - Legislative, Judic
ial, and Executive. The Judicial Department was to have no part whatever in maki
ng any laws. In fact proposals looking to vesting some power in the Judiciary to
take part in the legislative process and veto laws were offered, considered, an
d rejected by the Constitutional Convention. 4 In my [397 U.S. 254, 274] judgm
ent there is not one word, phrase, or sentence from the beginning to the end of
the Constitution from which it can be inferred that judges were granted any such
legislative power. True, Marbury v. Madison, 1 Cranch 137 (1803), held, and pro
perly, I think, that courts must be the final interpreters of the Constitution,
and I recognize that the holding can provide an opportunity to slide imperceptib
ly into constitutional amendment and law making. But when federal judges use thi
s judicial power for legislative purposes, I think they wander out of their fiel
d of vested powers and transgress into the area constitutionally assigned to the
Congress and the people. That is precisely what I believe the Court is doing in
this case. Hence my dissent.
The more than a million names on the relief rolls in New York, 5 and the more th
an nine million names on the rolls of all the 50 States were not put there at ra
ndom. The names are there because state welfare officials believed that those pe
ople were eligible for assistance. Probably in the officials' haste to make out
the lists many names were put there erroneously in order to alleviate immediate
suffering, and undoubtedly some people are drawing relief who are not entitled u
nder the law to do so. Doubtless some draw relief checks from time to time who k
now they are not eligible, either because they are not actually in need or for s
ome other reason. Many of those who thus draw undeserved gratuities are without
sufficient property to enable the government to collect back from them any money
they wrongfully receive. But the Court today holds that it would violate the Du
e Process Clause of the Fourteenth Amendment to stop paying those people weekly
or monthly allowances unless the government first affords them a full "evidentia
ry hearing" even [397 U.S. 254, 275] though welfare officials are persuaded th
at the recipients are not rightfully entitled to receive a penny under the law.
In other words, although some recipients might be on the lists for payment wholl
y because of deliberate fraud on their part, the Court holds that the government
is helpless and must continue, until after an evidentiary hearing, to pay money
that it does not owe, never has owed, and never could owe. I do not believe the
re is any provision in our Constitution that should thus paralyze the government
's efforts to protect itself against making payments to people who are not entit
led to them.
Particularly do I not think that the Fourteenth Amendment should be given such a
n unnecessarily broad construction. That Amendment came into being primarily to
protect Negroes from discrimination, and while some of its language can and does
protect others, all know that the chief purpose behind it was to protect ex-sla
ves. Cf. Adamson v. California, 332 U.S. 46, 71 -72, and n. 5 (1947) (dissenting
opinion). The Court, however, relies upon the Fourteenth Amendment and in effec
t says that failure of the government to pay a promised charitable installment t
o an individual deprives that individual of his own property, in violation of th
e Due Process Clause of the Fourteenth Amendment. It somewhat strains credulity
to say that the government's promise of charity to an individual is property bel
onging to that individual when the government denies that the individual is hone
stly entitled to receive such a payment.
I would have little, if any, objection to the majority's decision in this case i
f it were written as the report of the House Committee on Education and Labor, b
ut as an opinion ostensibly resting on the language of the Constitution I find i
t woefully deficient. Once the verbiage is pared away it is obvious that this Co
urt today adopts the views of the District Court "that to cut off a welfare reci
pient in the face of . . . `brutal need' without a prior [397 U.S. 254, 276] h
earing of some sort is unconscionable," and therefore, says the Court, unconstit
utional. The majority reaches this result by a process of weighing "the recipien
t's interest in avoiding" the termination of welfare benefits against "the gover
nmental interest in summary adjudication." Ante, at 263. Today's balancing act r
equires a "pre-termination evidentiary hearing," yet there is nothing that indic
ates what tomorrow's balance will be. Although the majority attempts to bolster
its decision with limited quotations from prior cases, it is obvious that today'
s result does not depend on the language of the Constitution itself or the princ
iples of other decisions, but solely on the collective judgment of the majority
as to what would be a fair and humane procedure in this case.
This decision is thus only another variant of the view often expressed by some m
embers of this Court that the Due Process Clause forbids any conduct that a majo
rity of the Court believes "unfair," "indecent," or "shocking to their conscienc
es." See, e. g., Rochin v. California, 342 U.S. 165, 172 (1952). Neither these w
ords nor any like them appear anywhere in the Due Process Clause. If they did, t
hey would leave the majority of Justices free to hold any conduct unconstitution
al that they should conclude on their own to be unfair or shocking to them. 6 Ha
d the drafters of the Due Process Clause meant to leave judges such ambulatory p
ower to declare [397 U.S. 254, 277] laws unconstitutional, the chief value of
a written constitution, as the Founders saw it, would have been lost. In fact, i
f that view of due process is correct, the Due Process Clause could easily swall
ow up all other parts of the Constitution. And truly the Constitution would alwa
ys be "what the judges say it is" at a given moment, not what the Founders wrote
into the document. 7 A written constitution, designed to guarantee protection a
gainst governmental abuses, including those of judges, must have written standar
ds that mean something definite and have an explicit content. I regret very much
 to be compelled to say that the Court today makes a drastic and dangerous depar
ture from a Constitution written to control and limit the government and the jud
ges and moves toward a constitution designed to be no more and no less than what
the judges of a particular social and economic philosophy declare on the one ha
nd to be fair or on the other hand to be shocking and unconscionable.
The procedure required today as a matter of constitutional law finds no preceden
t in our legal system. Reduced to its simplest terms, the problem in this case i
s similar to that frequently encountered when two parties have an ongoing legal
relationship that requires one party to make periodic payments to the other. Oft
en the situation arises where the party "owing" the money stops paying it and ju
stifies his conduct by arguing that the recipient is not legally entitled to pay
ment. The recipient can, of course, disagree and go to court to compel payment.
But I know of no situation in our legal system in which the person alleged to ow
e money to [397 U.S. 254, 278] another is required by law to continue making p
ayments to a judgment-proof claimant without the benefit of any security or bond
to insure that these payments can be recovered if he wins his legal argument. Y
et today's decision in no way obligates the welfare recipient to pay back any be
nefits wrongfully received during the pre-termination evidentiary hearings or po
st any bond, and in all "fairness" it could not do so. These recipients are by d
efinition too poor to post a bond or to repay the benefits that, as the majority
assumes, must be spent as received to insure survival.
The Court apparently feels that this decision will benefit the poor and needy. I
n my judgment the eventual result will be just the opposite. While today's decis
ion requires only an administrative, evidentiary hearing, the inevitable logic o
f the approach taken will lead to constitutionally imposed, time-consuming delay
s of a full adversary process of administrative and judicial review. In the next
case the welfare recipients are bound to argue that cutting off benefits before
judicial review of the agency's decision is also a denial of due process. Since
, by hypothesis, termination of aid at that point may still "deprive an eligible
recipient of the very means by which to live while he waits," ante, at 264, I w
ould be surprised if the weighing process did not compel the conclusion that ter
mination without full judicial review would be unconscionable. After all, at eac
h step, as the majority seems to feel, the issue is only one of weighing the gov
ernment's pocketbook against the actual survival of the recipient, and surely th
at balance must always tip in favor of the individual. Similarly today's decisio
n requires only the opportunity to have the benefit of counsel at the administra
tive hearing, but it is difficult to believe that the same reasoning process wou
ld not require the appointment of counsel, for otherwise the right to counsel is
a meaningless one since these [397 U.S. 254, 279] people are too poor to hire
their own advocates. Cf. Gideon v. Wainwright, 372 U.S. 335, 344 (1963). Thus t
he end result of today's decision may well be that the government, once it decid
es to give welfare benefits, cannot reverse that decision until the recipient ha
s had the benefits of full administrative and judicial review, including, of cou
rse, the opportunity to present his case to this Court. Since this process will
usually entail a delay of several years, the inevitable result of such a constit
utionally imposed burden will be that the government will not put a claimant on
the rolls initially until it has made an exhaustive investigation to determine h
is eligibility. While this Court will perhaps have insured that no needy person
will be taken off the rolls without a full "due process" proceeding, it will als
o have insured that many will never get on the rolls, or at least that they will
remain destitute during the lengthy proceedings followed to determine initial e
ligibility.
For the foregoing reasons I dissent from the Court's holding. The operation of a
welfare state is a new experiment for our Nation. For this reason, among others
, I feel that new experiments in carrying out a welfare program should not be fr
ozen into our constitutional structure. They should be left, as are other legisl
ative determinations, to the Congress and the legislatures that the people elect
 to make our laws.
[ Footnote 1 ] This figure includes all recipients of Old-age Assistance, Aid to
Families with Dependent Children, Aid to the Blind, Aid to the Permanently and
Totally Disabled, and general assistance. In this case appellants are AFDC and g
eneral assistance recipients. In New York State alone there are 951,000 AFDC rec
ipients and 108,000 on general assistance. In the Nation as a whole the comparab
le figures are 6,080,000 and 391,000. U.S. Bureau of the Census, Statistical Abs
tract of the United States: 1969 (90th ed.), Table 435, p. 297.
[ Footnote 2 ] The goal of a written constitution with fixed limits on governmen
tal power had long been desired. Prior to our colonial constitutions, the closes
t man had come to realizing this goal was the political movement of the Leveller
s in England in the 1640's. J. Frank, The Levellers (1955). In 1647 the Leveller
s proposed the adoption of An Agreement of the People which set forth written li
mitations on the English Government. This proposal contained many of the ideas w
hich later were incorporated in the constitutions of this Nation. Id., at 135-14
7.
[ Footnote 3 ] This command is expressed in the Tenth Amendment: "The powers not
delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people."
[ Footnote 4 ] It was proposed that members of the judicial branch would sit on
a Council of Revision which would consider legislation and have the power to vet
o it. This proposal was rejected. J. Elliot, 1 Elliot's Debates 160, 164, 214 (J
ournal of the Federal Convention); 395, 398 (Yates' Minutes); vol. 5, pp. 151, 1
64-166, 344-349 (Madison's Notes) (Lippincott ed. 1876). It was also suggested t
hat The Chief Justice would serve as a member of the President's executive counc
il, but this proposal was similarly rejected. Id., vol. 5, pp. 442, 445, 446, 46
2.
[ Footnote 5 ] See n. 1, supra.
[ Footnote 6 ] I am aware that some feel that the process employed in reaching t
oday's decision is not dependent on the individual views of the Justices involve
d, but is a mere objective search for the "collective conscience of mankind," bu
t in my view that description is only a euphemism for an individual's judgment.
Judges are as human as anyone and as likely as others to see the world through t
heir own eyes and find the "collective conscience" remarkably similar to their o
wn. Cf. Griswold v. Connecticut, 381 U.S. 479, 518 -519 (1965) (BLACK, J., disse
nting); Sniadach v. Family Finance Corp., 395 U.S. 337, 350 -351 (1969) (BLACK,
J., dissenting).
[ Footnote 7 ] To realize how uncertain a standard of "fundamental fairness" wou
ld be, one has only to reflect for a moment on the possible disagreement if the
"fairness" of the procedure in this case were propounded to the head of the Nati
onal Welfare Rights Organization, the president of the national Chamber of Comme
rce, and the chairman of the John Birch Society. [397 U.S. 254, 280]
U.S. Supreme Court
Bell v. Burson, 402 U.S. 535 (1971)
Bell v. Burson
No. 5586
Argued March 23, 1971
Decided May 24, 1971
402 U.S. 535
CERTIORARI TO THE COURT OF APPEALS OF GEORGIA
Syllabus
Georgia's Motor Vehicle Safety Responsibility Act, which provides that the motor
vehicle registration and driver's license of an uninsured motorist involved in
an accident shall be suspended unless he posts security for the amount of damage
s claimed by an aggrieved party and which excludes any consideration of fault or
responsibility for the accident at a pre-suspension hearing held violative of p
rocedural due process. Before Georgia, whose statutory scheme significantly invo
lves the issue of liability, may deprive an individual of his license and regist
ration, it must provide a procedure for determining the question whether there i
s a reasonable possibility of a judgment's being rendered against him as a resul
t of the accident. Pp. 402 U. S. 539-543.
121 Ga.App. 418, 174 S.E.2d 235, reversed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, HARLAN, STEWA
RT, WHITE, and MARSHALL, JJ., joined. BURGER, C.J., and BLACK and BLACKMUN, JJ.,
concurred in the result.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Georgia's Motor Vehicle Safety Responsibility Act provides that the motor vehicl
e registration and driver's
Page 402 U. S. 536
license of an uninsured motorist involved in an accident shall be suspended unle
ss he posts security to cover the amount of damages claimed by aggrieved parties
in reports of the accident. [Footnote 1] The administrative hearing conducted p
rior to the suspension excludes consideration of the motorist's fault or liabili
ty for the accident. The Georgia Court of Appeals rejected petitioner's contenti
on that the State's statutory scheme, in failing before suspending the licenses
to afford him a hearing on the question of his fault or liability, denied him du
e process in violation of the Fourteenth Amendment: the court
Page 402 U. S. 537
held that "Fault' or `innocence' are completely irrelevant factors." 121 Ga.App.
418, 420, 174 S.E.2d 235, 236 (1970). The Georgia Supreme Court denied review.
App. 27. We granted certiorari. 400 U.S. 963 (1970). We reverse.
Petitioner is a clergyman whose ministry requires him to travel by car to cover
three rural Georgia communities. On Sunday afternoon, November 24, 1968, petitio
ner was involved in an accident when five-year-old Sherry Capes rode her bicycle
into the side of his automobile. The child's parents filed an accident report w
ith the Director of the Georgia Department of Public Safety indicating that thei
r daughter had suffered substantial injuries for which they claimed damages of $
5,000. Petitioner was thereafter informed by the Director that, unless he was co
vered by a liability insurance policy in effect at the time of the accident, he
must file a bond or cash security deposit of $5,000 or present a notarized relea
se from liability, plus proof of future financial responsibility, [Footnote 2] o
r suffer the suspension of his driver's license and vehicle registration. App. 9
. Petitioner requested an administrative hearing before the Director asserting t
hat he was not liable as the accident was unavoidable, and stating also that he
would be severely handicapped in the performance of his ministerial duties by a
suspension of his licenses. A hearing was scheduled, but the Director informed p
etitioner that
"[t]he only evidence that the Department can accept and consider is: (a) was the
petitioner or his vehicle involved in the accident; (b) has petitioner complied
with the provisions of the Law as provided; or (c) does petitioner come within
Page 402 U. S. 538
any of the exceptions of the Law."
App. 11. [Footnote 3] At the administrative hearing, the Director rejected petit
ioner's proffer of evidence on liability, ascertained that petitioner was not wi
thin any of the statutory exceptions, and gave petitioner 30 days to comply with
the security requirements or suffer suspension. Petitioner then exercised his s
tatutory right to an appeal de novo in the Superior Court. Ga.Code Ann. § 92A-602
(1958). At that hearing, the court permitted petitioner to present his evidence
on liability, and, although the claimants were neither parties nor witnesses, fo
und petitioner free from fault. As a result, the Superior Court ordered
"that the petitioner's driver's license not be suspended . . . [until] suit is f
iled against petitioner for the purpose of recovering damages for the injuries s
ustained by the child. . . ."
App. 15. This order was reversed by the Georgia Court of Appeals in overruling p
etitioner's constitutional contention.
Page 402 U. S. 539
If the statute barred the issuance of licenses to all motorists who did not carr
y liability insurance or who did not post security, the statute would not, under
our cases, violate the Fourteenth Amendment. Ex parte Poresky, 290 U. S. 30 (19
33); Continental Baking Co. v. Woodring, 286 U. S. 352 (1932); Hess v. Pawloski,
274 U. S. 352 (1927). It does not follow, however, that the amendment also perm
its the Georgia statutory scheme where not all motorists, but rather only motori
sts involved in accidents, are required to post security under penalty of loss o
f the licenses. See Shapiro v. Thompson, 394 U. S. 618 (1969); Frost & Frost Tru
cking Co. v. Railroad Comm'n, 271 U. S. 583 (1926). Once licenses are issued, as
in petitioner's case, their continued possession may become essential in the pu
rsuit of a livelihood. Suspension of issued licenses thus involves state action
that adjudicates important interests of the licensees. In such cases, the licens
es are not to be taken away without that procedural due process required by the
Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); Go
ldberg v. Kelly, 397 U. S. 254 (1970). This is but an application of the general
proposition that relevant constitutional restraints limit state power to termin
ate an entitlement whether the entitlement is denominated a "right" or a "privil
ege." Sherbert v. Verner, 374 U. S. 398 (1963) (disqualification for unemploymen
t compensation); Slochower v. Board of Education, 350 U. S. 551 (1956) (discharg
e from public employment); Speiser v. Randall, 357 U. S. 513 (1958) (denial of a
tax exemption); Goldberg v. Kelly, supra (withdrawal of welfare benefits). See
also Londoner v. Denver, 210 U. S. 373, 210 U. S. 385-386 (1908); Goldsmith v. B
oard of Tax Appeals, 270 U. S. 117 (1926); Opp Cotton Mills v. Administrator, 31
2 U. S. 126 (1941).
We turn then to the nature of the procedural due process which must be afforded
the licensee on the question
Page 402 U. S. 540
of his fault or liability for the accident. [Footnote 4] A procedural rule that
may satisfy due process in one context may not necessarily satisfy procedural du
e process in every case. Thus, procedures adequate to determine a welfare claim
may not suffice to try a felony charge. Compare Goldberg v. Kelly, 397 U.S. at 3
97 U. S. 270-271, with Gideon v. Wainwright, 372 U. S. 335 (1963). Clearly, howe
ver, the inquiry into fault or liability requisite to afford the licensee due pr
ocess need not take the form of a full adjudication of the question of liability
. That adjudication can only be made in litigation between the parties involved
in the accident. Since the only purpose of the provision before us is to obtain
security from which to pay any judgments against the licensee resulting from the
accident, we hold that procedural due process will be satisfied by an inquiry l
imited to the determination whether there is a reasonable possibility of judgmen
ts in the amounts claimed being rendered against the licensee.
The State argues that the licensee's interest in avoiding the suspension of his
licenses is outweighed by countervailing governmental interests, and therefore t
hat this procedural due process need not be afforded him. We disagree. In cases
where there is no reasonable possibility of a judgment's being rendered against
a licensee, Georgia's interest in protecting a claimant from the possibility of
an unrecoverable judgment is not, within the context of the State's fault-orient
ed scheme, a justification for denying the process due its citizens. Nor is addi
tional expense occasioned by the expanded hearing sufficient to withstand the co
nstitutional requirement.
"'While the problem of additional expense must be kept
Page 402 U. S. 541
in mind, it does not justify denying a hearing meeting the ordinary standards of
due process.'"
Goldberg v. Kelly, 397 U.S. at 397 U. S. 261, quoting Kelly v. Wyman, 94 F.Supp.
893, 901 (SDNY 1968).
The main thrust of Georgia's argument is that it need not provide a hearing on l
iability, because fault and liability are irrelevant to the statutory scheme. We
may assume that, were this so, the prior administrative hearing presently provi
ded by the State would be "appropriate to the nature of the case." Mullane v. Ce
ntral Hanover Bank & Trust Co., 339 U. S. 306, 339 U. S. 313 (1950). But,
"[i]n reviewing state action in this area . . . , we look to substance, not to b
are form, to determine whether constitutional minimums have been honored."
Willner v. Committee on Character, 373 U. S. 96, 373 U. S. 106-107 (1963) (concu
rring opinion). And looking to the operation of the State's statutory scheme, it
is clear that liability, in the sense of an ultimate judicial determination of
responsibility, plays a crucial role in the Safety Responsibility Act. If, prior
to suspension, there is a release from liability executed by the injured party,
no suspension is worked by the Act. Ga.Code Ann. § 92A-606 (1958). The same is tr
ue if, prior to suspension, there is an adjudication of nonliability. Ibid. Even
after suspension has been declared, a release from liability or an adjudication
of nonliability will lift the suspension. Ga.Code Ann. § 92A-607 (Supp. 1970). Mo
reover, other of the Act's exceptions are developed around liability-related con
cepts. Thus, we are not dealing here with a no-fault scheme. Since the statutory
scheme makes liability an important factor in the State's determination to depr
ive an individual of his licenses, the State may not, consistently with due proc
ess, eliminate consideration of that factor in its prior hearing.
The hearing required by the Due Process Clause must be "meaningful," Armstrong v
. Manzo, 380 U. S. 545,
Page 402 U. S. 542
380 U. S. 552 (1965), and "appropriate to the nature of the case." Mullane v. Ce
ntral Hanover Bank & Trust Co., supra, at 339 U. S. 313. It is a proposition whi
ch hardly seems to need explication that a hearing which excludes consideration
of an element essential to the decision whether licenses of the nature here invo
lved shall be suspended does not meet this standard.
Finally, we reject Georgia's argument that, if it must afford the licensee an in
quiry into the question of liability, that determination, unlike the determinati
on of the matters presently considered at the administrative hearing, need not b
e made prior to the suspension of the licenses. While "[m]any controversies have
raged about . . . the Due Process Clause," ibid., it is fundamental that, excep
t in emergency situations (and this is not one), [Footnote 5] due process requir
es that, when a State seeks to terminate an interest such as that here involved,
it must afford "notice and opportunity for hearing appropriate to the nature of
the case" before the termination becomes effective. Ibid. Opp Cotton Mills v. A
dministrator, 312 U.S. at 312 U. S. 152-156; Sniadach v. Family Finance Corp., s
upra; Goldberg v. Kelly, supra; Wisconsin v. Constantineau, 400 U. S. 433 (1971)
.
We hold, then, that under Georgia's present statutory scheme, before the State m
ay deprive petitioner of his driver's license and vehicle registration, it must
provide a forum for the determination of the question whether there is a reasona
ble possibility of a judgment being rendered against him as a result of the acci
dent. We deem it inappropriate in this case to do more than lay down this requir
ement. The alternative methods of compliance are several. Georgia may decide mer
ely to include consideration of the question at the administrative
Page 402 U. S. 543
hearing now provided, or it may elect to postpone such a consideration to the de
novo judicial proceedings in the Superior Court. Georgia may decide to withhold
suspension until adjudication of an action for damages brought by the injured p
arty. Indeed, Georgia may elect to abandon its present scheme completely and pur
sue one of the various alternatives in force in other States. [Footnote 6] Final
ly, Georgia may reject all of the above and devise an entirely new regulatory sc
heme. The area of choice is wide: we hold only that the failure of the present G
eorgia scheme to afford the petitioner a prior hearing on liability of the natur
e we have defined denied him procedural due process in violation of the Fourteen
th Amendment.
The judgment is reversed and the case is remanded for further proceedings not in
consistent with this opinion.
It is so ordered.
THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE BLACKMUN concur in the res
ult.
[Footnote 1]
Motor Vehicle Safety Responsibility Act, Ga.Code Ann. § 92A-601 et seq. (1958). In
pertinent part, the Act provides that anyone involved in an accident must submi
t a report to the Director of Public Safety. Ga.Code Ann. § 92A-604 (Supp. 1970).
Within 30 days of the receipt of the report, the Director
"shall suspend the license and all registration certificates and all registratio
n plates of the operator and owner of any motor vehicle in any manner involved i
n the accident unless or until the operator or owner has previously furnished or
 immediately furnishes security, sufficient . . . to satisfy any judgments for d
amages or injuries resulting . . . and unless such operator or owner shall give
proof of financial responsibility for the future as is required in section 92A-6
15.1. . . ."
Ga.Code Ann. § 92A-605(a) (Supp. 1970). Section 92A-615.1 (Supp. 1970) requires th
at "such proof must be maintained for a one-year period." Section 92A-605(a) wor
ks no suspension, however, (1) if the owner or operator had in effect at the tim
e of the accident a liability insurance policy or other bond, Ga.Code Ann. § 92A-6
05(c) (Supp. 1970); (2) if the owner or operator qualifies as a self-insurer, ib
id.; (3) if only the owner or operator was injured, Ga.Code Ann. § 92A-606 (1958);
(4) if the automobile was legally parked at the time of the accident, ibid.; (5
) if, as to an owner, the automobile was being operated without permission, ibid
.; or (6)
"[i]f, prior to the date that the Director would otherwise suspend license and r
egistration . . . there shall be filed with the Director evidence satisfactory t
o him that the person who would otherwise have to file security has been release
d from liability or been finally adjudicated not to be liable or has executed a
duly acknowledged written agreement providing for the payment of an agreed amoun
t in installments. . . ."
Ibid.
[Footnote 2]
Questions concerning the requirement of proof of future financial responsibility
are not before us. The State's brief, at 4, states:
"The one-year period for proof of financial responsibility has now expired, so [
petitioner] would not be required to file such proof, even if the Court of Appea
ls decision were affirmed."
[Footnote 3]
Ga.Code Ann. § 92A-602 (1958) provides:
"The Director shall administer and enforce the provisions of this Chapter and ma
y make rules and regulations necessary for its administration and shall provide
for hearings upon request of persons aggrieved by orders or acts of the Director
under the provisions of this Chapter. Such hearing need not be a matter of reco
rd and the decision as rendered by the Director shall be final unless the aggrie
ved person shall desire an appeal, in which case he shall have the right to ente
r an appeal to the superior court of the county of his residence, by notice to t
he Director, in the same manner as appeals are entered from the court of ordinar
y, except that the appellant shall not be required to post any bond nor pay the
costs in advance. If the aggrieved person desires, the appeal may be heard by th
e judge at term or in chambers or before a jury at the first term. The hearing o
n the appeal shall be de novo, however, such appeal shall not act as a supersede
as of any orders or acts of the Director, nor shall the appellant be allowed to
operate or permit a motor vehicle to be operated in violation of any suspension
or revocation by the Director, while such appeal is pending. A notice sent by re
gistered mail shall be sufficient service on the Director that such appeal has b
een entered."
[Footnote 4]
Petitioner stated at oral argument that, while "it would be possible to raise [a
n equal protection argument] . . . , we don't raise this point here." Tr. of Ora
l Arg. 14.
[Footnote 5]
See, e.g., Fahey v. Mallonee, 332 U. S. 245 (1947); Ewing v. Mytinger & Casselbe
rry, 339 U. S. 594 (1950).
[Footnote 6]
The various alternatives include compulsory insurance plans, public or joint pub
lic-private unsatisfied judgment funds, and assigned claims plans. See R. Keeton
& J. O'Connell, After Cars Crash (1967).

Calder v. Bull, 3 U.S. 3 Dall. 386 386 (1798)

Calder v. Bull
3 U.S. (3 Dall.) 386
I
N ERROR FROM THE
STATE OF CONNECTICUT
Syllabus
A resolution or law of the State of Connecticut setting aside a decree of a cour
t and granting a new trial to be had before the same court is not void under the
Constitution as an ex post facto law.
The Legislature of Connecticut, on the second Thursday of May, 1795, passed a re
solution or law which set aside a decree of the Court of Probate for Hartford Co
unty made 21 March, 1793, disapproving a? the will of N.M. and refusing to recor
d the will. The act of the legislature authorized a new hearing of the case befo
re the court of probate, and an appeal to the superior court. Afterwards the wil
l of N.M. was confirmed by the court of probate and by the Superior Court at Har
tford;, and on an appeal to the Supreme Court of Errors of Connecticut the judgm
ent of the superior court was confirmed. More than eighteen months had elapsed f
rom the first decree of the court of probate, during which the right of appeal h
ad been lost, and there was no law of Connecticut, before the passing of the spe
cial act of the legislature, by which a new hearing of the case could have been
obtained. Held that the act of May, 1795, was not an ex post facto law prohibite
d by the Constitution of the United States.
CHASE, JUSTICE.
The decision of one question determines (in my opinion) the present dispute. I s
hall therefore state from the record no more of the case than I think necessary
for the consideration of that question only.
The Legislature of Connecticut, on the 2d Thursday of May, 1795, passed a resolu
tion or law which, for the reasons assigned, set aside a decree of the Court of
Probate for Harford on 21 March 1793, which decree disapproved of the will of No
rmand Morrison (the grandson) made 21 August, 1779, and refused to record the sa
id will, and granted a new hearing by the said court of probate with liberty of
appeal therefrom in six months. A new hearing was had in virtue of this resoluti
on or law before the said court of probate, which, on 27 July, 1795, approved th
e said will and ordered it to be recorded. At August, 1795, appeal was then had
to the Superior Court at Hartford, which, at February term, 1796, affirmed the d
ecree of the court of probate. Appeal was had to the Supreme Court of Errors of
Connecticut, which, in June, 1796, adjudged that there were no errors. More than
18 months elapsed from the decree of the court of probate (on 1 March, 1793) an
d thereby Caleb Bull and wife were barred of all right
Page 3 U. S. 387
of appeal by a statute of Connecticut. There was no law of that state whereby a
new hearing or trial before the said court of probate might be obtained. Calder
and wife claim the premises in question, in right of his wife as heiress of N. M
orrison, physician; Bull and wife claim under the will of N. Morrison, the grand
son.
The counsel for the plaintiffs in error contend that the said resolution or law
of the Legislature of Connecticut granting a new hearing in the above case is an
ex post facto law, prohibited by the Constitution of the United States; that an
y law of the federal government or of any of the state governments contrary to t
he Constitution of the United States is void, and that this Court possesses the
power to declare such law void.
It appears to me a self-evident proposition that the several state legislatures
retain all the powers of legislation delegated to them by the state constitution
s which are not expressly taken away by the Constitution of the United States. T
he establishing of courts of justice, the appointment of judges, and the making
regulations for the administration of justice within each state according to its
laws on all subjects not entrusted to the federal government appears to me to b
e the peculiar and exclusive province and duty of the state legislatures. All th
e powers delegated by the people of the United States to the federal government
are defined, and no constructive powers can be exercised by it, and all the powe
rs that remain in the state governments are indefinite except only in the Consti
tution of Massachusetts.
The effect of the resolution or law of Connecticut above stated is to revise a d
ecision of one of its inferior courts, called the Court of Probate for Hartford,
and to direct a new hearing of the case by the same court of probate, that pass
ed the decree against the will of Normand Morrison. By the existing law of Conne
cticut, a right to recover certain property had vested in Calder and wife (the a
ppellants) in consequence of a decision of a court of justice, but, in virtue of
a subsequent resolution or law and the new hearing thereof and the decision in
consequence, this right to recover certain property was divested, and the right
to the property declared to be in Bull and wife, the appellees. The sole inquiry
is whether this resolution or law of Connecticut, having such operation, is an
ex post facto law within the prohibition of the federal Constitution.
Whether the legislature of any of the states can revise and correct by law a dec
ision of any of its courts of justice, although not prohibited by the constituti
on of the state, is a question of very great importance, and not necessary now t
o be determined, because the resolution or law in question does not go so far. I
cannot subscribe to the omnipotence of a state
Page 3 U. S. 388
legislature, or that it is absolute and without control, although its authority
should not be expressly restrained by the constitution or fundamental law of the
state. The people of the United States erected their constitutions, or forms of
government, to establish justice, to promote the general welfare, to secure the
blessings of liberty, and to protect their persons and property from violence.
The purposes for which men enter into society will determine the nature and term
s of the social compact, and as they are the foundation of the legislative power
, they will decide what are the proper objects of it. The nature and ends of leg
islative power will limit the exercise of it. This fundamental principle flows f
rom the very nature of our free republican governments that no man should be com
pelled to do what the laws do not require nor to refrain from acts which the law
s permit. There are acts which the federal or state legislature cannot do withou
t exceeding their authority. There are certain vital principles in our free repu
blican governments which will determine and overrule an apparent and flagrant ab
use of legislative power, as to authorize manifest injustice by positive law or
to take away that security for personal liberty or private property for the prot
ection whereof of the government was established. An act of the legislature (for
I cannot call it a law) contrary to the great first principles of the social co
mpact cannot be considered a rightful exercise of legislative authority. The obl
igation of a law in governments established on express compact and on republican
principles must be determined by the nature of the power on which it is founded
.
A few instances will suffice to explain what I mean. A law that punished a citiz
en for an innocent action, or in other words for an act which when done was in v
iolation of no existing law; a law that destroys or impairs the lawful private c
ontracts of citizens; a law that makes a man a judge in his own cause, or a law
that takes property from A. and gives it to B. It is against all reason and just
ice for a people to entrust a legislature with such powers, and therefore it can
not be presumed that it has done it. The genius, the nature, and the spirit of o
ur state governments amount to a prohibition of such acts of legislation, and th
e general principles of law and reason forbid them. The legislature may enjoin,
permit, forbid, and punish; It may declare new crimes and establish rules of con
duct for all its citizens in future cases; it may command what is right and proh
ibit what is wrong, but it cannot change innocence into guilt or punish innocenc
e as a crime or violate the right of an antecedent lawful private contract or th
e right of private property. To maintain that our federal or state legislature p
ossesses such powers if it had not been expressly restrained would,
Page 3 U. S. 389
in my opinion, be a political heresy altogether inadmissible in our free republi
can governments.
All the restrictions contained in the Constitution of the United States on the p
ower of the state legislatures were provided in favor of the authority of the fe
deral government. The prohibition against its making any ex post facto laws was
introduced for greater caution, and very probably arose from the knowledge that
the Parliament of Great Britain claimed and exercised a power to pass such laws
under the denomination of bills of attainder or bills of pains and penalties, th
e first inflicting capital and the other less punishment. These acts were legisl
ative judgments and an exercise of judicial power. Sometimes they respected the
crime by declaring acts to be treason which were not treason when committed; at
other times they violated the rules of evidence (to supply a deficiency of legal
proof) by admitting one witness when the existing law required two, by receivin
g evidence without oath or the oath of the wife against the husband, or other te
stimony which the courts of justice would not admit; at other times they inflict
ed punishments where the party was not by law liable to any punishment, and in o
ther cases they inflicted greater punishment than the law annexed to the offense
. The ground for the exercise of such legislative power was this, that the safet
y of the kingdom depended on the death or other punishment of the offender, as i
f traitors, when discovered, could be so formidable or the government so insecur
e! With very few exceptions, the advocates of such laws were stimulated by ambit
ion or personal resentment and vindictive malice. To prevent such and similar, a
cts of violence and injustice, I believe, the federal and state legislatures wer
e prohibited from passing any bill of attainder or any ex post facto law.
The case of the Earl of Strafford in 1641.
The case of Sir John Fenwick in 1696.
The banishment of Lord Clarendon, 1669, 19 Ca. 2, c. 10, and of the Bishop of At
terbury in 1723, 9 Geo. I, c. 17.
The Coventry Act, in 1670, 22 & 23 Car. II, c. 1.
The Constitution of the United States, Article I, section 9, prohibits the Legis
lature of the United States from passing any ex post facto law, and in section 1
0 lays several restrictions on the authority of the legislatures of the several
states, and among them "that no state shall pass any ex post facto law."
It may be remembered that the legislatures of several of the states, to-wit, Mas
sachusetts, Pennsylvania, Delaware, Maryland, and North and South Carolina, are
expressly prohibited, by their state Constitutions from passing any ex post fact
o law.
Page 3 U. S. 390
I shall endeavor to show what law is to be considered an ex post facto law withi
n the words and meaning of the prohibition in the federal Constitution. The proh
ibition "that no state shall pass any ex post facto law" necessarily requires so
me explanation, for naked and without explanation it is unintelligible and means
nothing. Literally, it is only that a law shall not be passed concerning and af
ter the fact or thing done or action committed. I would ask, what fact, of what
nature, or kind, and by whom done? That Charles I, King of England, was beheaded
, that Oliver Cromwell was Protector of England, that Louis XVI, late King of Fr
ance, was guillotined, are all facts that have happened, but it would be nonsens
e to suppose that the states were prohibited from making any law after either of
these events and with reference thereto. The prohibition in the letter is not t
o pass any law concerning and after the fact, but the plain and obvious meaning
and intention of the prohibition is this -- that the legislatures of the several
states shall not pass laws after a fact done by a subject or citizen which shal
l have relation to such fact and shall punish him for having done it. The prohib
ition, considered in this light, is an additional bulwark in favor of the person
al security of the subject, to protect his person from punishment by legislative
acts having a retrospective operation. I do not think it was inserted to secure
the citizen in his private rights of either property or contracts. The prohibit
ions not to make anything but gold and silver coin a tender in payment of debts
and not to pass any law impairing the obligation of contracts were inserted to s
ecure private rights, but the restriction not to pass any ex post facto law was
to secure the person of the subject from injury or punishment in consequence of
such law. If the prohibition against making ex post facto laws was intended to s
ecure personal rights from being affected, or injured by such laws, and the proh
ibition is sufficiently extensive for that object, the other restraints I have e
numerated were unnecessary, and therefore improper, for both of them are retrosp
ective.
I will state what laws I consider ex post facto laws within the words and the in
tent of the prohibition. 1st. Every law that makes an action done before the pas
sing of the law and which was innocent when done, criminal and punishes such act
ion. 2d. Every law that aggravates a crime, or makes it greater than it was when
committed. 3rd. Every law that changes the punishment, and inflicts a greater p
unishment than the law annexed to the crime, when committed. 4th. Every law that
alters the legal rules of evidence and receives less or different testimony tha
n the law required at the time of the commission of the offense in order to conv
ict the offender.
Page 3 U. S. 391
All these and similar laws are manifestly unjust and oppressive. In my opinion,
the true distinction is between ex post facto laws and retrospective laws. Every
ex post facto law must necessarily be retrospective, but every retrospective la
w is not an ex post facto law. The former only are prohibited. Every law that ta
kes away or impairs rights vested agreeably to existing laws is retrospective, a
nd is generally unjust and may be oppressive, and it is a good general rule that
a law should have no retrospect; but there are cases in which laws may justly,
and for the benefit of the community and also of individuals, relate to a time a
ntecedent to their commencement, as statutes of oblivion or of pardon. They are
certainly retrospective, and literally both concerning and after the facts commi
tted. But I do not consider any law ex post facto within the prohibition that mo
llifies the rigor of the criminal law, but only those that create or aggravate t
he crime or increase the punishment or change the rules of evidence for the purp
ose of conviction. Every law that is to have an operation before the making ther
eof, as to commence at an antecedent time or to save time from the statute of li
mitations or to excuse acts which were unlawful, and before committed, and the l
ike, is retrospective. But such laws may be proper or necessary, as the case may
be. There is a great and apparent difference between making an unlawful act law
ful and the making an innocent action criminal and punishing it as a crime. The
expressions "ex post facto laws" are technical; they had been in use long before
the Revolution, and had acquired an appropriate meaning, by legislators, lawyer
s, and authors.
The celebrated and judicious Sir William Blackstone, in his commentaries, consid
ers an ex post facto law precisely in the same light I have done. His opinion is
confirmed by his successor, Mr. Wooddeson, and by the author of the Federalist,
who I esteem superior to both for his extensive and accurate knowledge of the t
rue principles of government.
I also rely greatly on the definition, or explanation of ex post facto laws as g
iven by the Conventions of Massachusetts, Maryland, and North Carolina in their
several constitutions or forms of government.
In the declaration of rights by the convention of Massachusetts, part 1st, sec.
24, "Laws made to punish actions done before the existence of such laws, and whi
ch have not been declared crimes by preceding laws, are unjust. . . ."
In the declaration of rights by the convention of Maryland, art. 15, "Retrospect
ive laws punishing facts committed before the existence of such laws, and by the
m only declared criminal, are oppressive. . . ."
Page 3 U. S. 392
In the declaration of rights by the Convention of North Carolina, art. 24, I fin
d the same definition, precisely in the same words, as in the Maryland Constitut
ion.
In the declaration of Rights by the convention of Delaware, art. 11, the same de
finition was clearly intended, but inaccurately expressed by saying "laws punish
ing offenses [instead of actions, or facts] committed before the existence of su
ch laws are oppressive. . . ."
I am of opinion that the fact contemplated by the prohibition, and not to be aff
ected by a subsequent law, was some fact to be done by a citizen or subject.
In 2d Lord Raymond 1352, Raymond, Justice, called the stat. 7 Geo. I, stat. 2 pa
r. 8, about registering contracts for South Sea Stock, an ex post facto law beca
use it affected contracts made before the statute.
In the present case there is no fact done by Bull and wife plaintiffs in error,
that is in any manner affected by the law or resolution of Connecticut. It does
not concern or relate to any act done by them. The decree of the Court of Probat
e of Hartford (on 21 March) in consequence of which Calder and wife claim a righ
t to the property in question was given before the said law or resolution, and i
n that sense was affected and set aside by it, and in consequence of the law all
owing a hearing and the decision in favor of the will, they have lost what they
would have been entitled to if the law or resolution, and the decision in conseq
uence thereof, had not been made. The decree of the court of probate is the only
fact on which the law or resolution operates. In my judgment, the case of the p
laintiffs in error is not within the letter of the prohibition, and for the reas
ons assigned I am clearly of opinion that it is not within the intention of the
prohibition, and if within the intention but out of the letter, I should not, th
erefore, consider myself justified to continue it within the prohibition, and th
erefore that the whole was void.
It was argued by the counsel for the plaintiffs in error that the Legislature of
Connecticut had no constitutional power to make the resolution (or law) in ques
tion granting a new hearing, etc.
Without giving an opinion at this time whether this Court has jurisdiction to de
cide that any law made by Congress contrary to the Constitution of the United St
ates is void, I am fully satisfied that this Court has no jurisdiction to determ
ine that any law of any state legislature contrary to the Constitution of such s
tate is void. Further, if this Court had such jurisdiction, yet it does not appe
ar to me that the resolution (or law) in question, is contrary to the charter of
Connecticut or its constitution, which is said by counsel to be composed of its
charter,
Page 3 U. S. 393
acts of assembly, and usages and customs. I should think that the courts of Conn
ecticut are the proper tribunals to decide whether laws contrary to the Constitu
tion thereof are void. In the present case they have, both in the inferior and s
uperior courts, determined that the resolution (or law) in question was not cont
rary to either their state or the federal Constitution.
To show that the resolution was contrary to the Constitution of the United State
s, it was contended that the words "ex post facto law" have a precise and accura
te meaning and convey but one idea to professional men, which is "by matter of a
fter fact; by something after the fact." Co.Litt. 241; Fearnes Con.Rem. (Old Ed)
175 and 203; Powell on Devises 113, 133-134 were cited, and the table to Coke's
Reports (by Wilson) title ex post facto, was referred to. There is no doubt tha
t a man may be a trespasser from the beginning, by matter of after fact, as wher
e an entry is given by law and the party abuses it, or where the law gives a dis
tress and the party kills or works the distress.
I admit an act unlawful in the beginning may, in some cases, become lawful by ma
tter of after fact.
I also agree that the words "ex post facto" have the meaning contended for, and
no other, in the cases cited and in all similar cases, where they are used uncon
nected with and without relation to legislative acts or laws.
There appears to me a manifest distinction between the case where one fact relat
es to and affects, another fact, as where an after fact, by operation of law, ma
kes a former fact, either lawful or unlawful, and the case where a law made afte
r a fact done, is to operate on and to affect such fact. In the first case, both
the acts are done by private persons. In the second case, the first act is done
by a private person and the second act is done by the legislature to affect the
first act.
I believe that but one instance can be found in which a British judge called a s
tatute that affected contracts made before the statute an ex post facto law, but
the judges of Great Britain always considered penal statutes that created crime
s or increased the punishment of them as ex post facto laws.
If the term "ex post facto law" is to be construed to include and to prohibit th
e enacting any law after a fact, it will greatly restrict the power of the feder
al and state legislatures, and the consequences of such a construction may not b
e foreseen.
If the prohibition to make no ex post facto law extends to all laws made after t
he fact, the two prohibitions not to make anything but gold and silver coin a te
nder in payment of debts and not to pass any law impairing the obligation of con
tracts were improper and unnecessary.
Page 3 U. S. 394
It was further urged that if the provision does not extend to prohibit the makin
g any law after a fact, then all choses in action, all lands by devise, all pers
onal property by bequest, or distribution, by elegit, by execution, by judgments
, particularly on torts, will be unprotected from the legislative power of the s
tates; rights vested may be divested at the will and pleasure of the state legis
latures, and therefore that the true construction and meaning of the prohibition
is that the states pass no law to deprive a citizen of any right vested in him
by existing laws.
It is not to be presumed that the federal or state legislatures will pass laws t
o deprive citizens of rights vested in them by existing laws unless for the bene
fit of the whole community and on making full satisfaction. The restraint agains
t making any ex post facto laws was not considered by the framers of the Constit
ution as extending to prohibit the depriving a citizen even of a vested right to
property or the provision "that private property should not be taken for public
use, without just compensation" was unnecessary.
It seems to me that the right of property, in its origin, could only arise from
compact express or implied, and I think it the better opinion that the right as
well as the mode or manner of acquiring property and of alienating or transferri
ng, inheriting, or transmitting it is conferred by society, is regulated by civi
l institution, and is always subject to the rules prescribed by positive law. Wh
en I say that a right is vested in a citizen, I mean that he has the power to do
certain actions or to possess certain things according to the law of the land.
If anyone has a right to property, such right is a perfect and exclusive right;
but no one can have such right before he has acquired a better right to the prop
erty than any other person in the world; a right, therefore, only to recover pro
perty cannot be called a perfect and exclusive right. I cannot agree that a righ
t to property vested in Calder and wife, in consequence of the decree (of 21 Mar
ch, 1783) disapproving of the will of Morrison, the grandson. If the will was va
lid, Mrs. Calder could have no right as heiress of Morrison, the physician, but
if the will was set aside, she had an undoubted title.
The resolution (or law) alone had no manner of effect on any right whatever vest
ed in Calder and wife. The resolution (or law) combined with the new hearing, an
d the decision in virtue of it took away their right to recover the property in
question. But when combined, they took away no right of property vested in Calde
r and wife, because the decree against the will (21 March, 1783) did not vest in
or transfer any property to them.
Page 3 U. S. 395
I am under a necessity to give a construction or explanation of the words "ex po
st facto law" because they have not any certain meaning attached to them. But I
will not go further than I feel myself bound to do, and if I ever exercise the j
urisdiction, I will not decide any law to be void but in a very clear case.
I am of opinion that the decree of the Supreme Court of Errors of Connecticut be
affirmed with costs.
PATERSON, JUSTICE.
The Constitution of Connecticut is made up of usages, and it appears that its le
gislature has from the beginning exercised the power of granting new trials. Thi
s has been uniformly the case till the year 1762, when this power was by a legis
lative act imparted to the superior and county courts. But the act does not remo
ve or annihilate the preexisting power of the legislature in this particular; it
only communicates to other authorities a concurrence of jurisdiction as to the
awarding of new trials. And the fact is that the legislature has in two instance
s exercised this power since the passing of the law in 1762. It acted in a doubl
e capacity, as a house of legislation with undefined authority and also as a cou
rt of judicature in certain exigencies. Whether the latter arose from the indefi
nite nature of their legislative powers or in some other way it is not necessary
to discuss. From the best information, however, which I have been able to colle
ct on this subject, it appears that the legislature, or General Court of Connect
icut, originally possessed and exercised all legislative, executive, and judicia
l authority, and that from time to time it distributed the two latter in such ma
nner as it thought proper, but without parting with the general superintending p
ower or the right of exercising the same whenever it should judge it expedient.
But be this as it may, it is sufficient for the present to observe that it has o
n certain occasions exercised judicial authority from the commencement of its ci
vil polity. This usage makes up part of the Constitution of Connecticut, and we
are bound to consider it as such unless it be inconsistent with the Constitution
of the United States. True it is that the awarding of new trials falls properly
within the province of the judiciary; but if the Legislature of Connecticut has
been in the uninterrupted exercise of this authority in certain cases, we must
in such cases respect its decisions as flowing from a competent jurisdiction or
constitutional organ. And therefore we may, in the present instance, consider th
e legislature of the state as having acted in its customary judicial capacity. I
f so, there is an end of the question. For if the power, thus exercised comes mo
re properly within the description of a judicial than of a legislative power, an
d if by usage or the
Page 3 U. S. 396
constitution, which, in Connecticut, are synonymous terms, the legislature of th
at state acted in both capacities, then in the case now before us it would be fa
ir to consider the awarding of a new trial as an act emanating from the judiciar
y side of the department.
But as this view of the subject militates against the plaintiffs in error, their
counsel has contended for a reversal of the judgment on the ground that the awa
rding of a new trial was the effect of a legislative act, and that it is unconst
itutional because an ex post facto law. For the sake of ascertaining the meaning
of these terms, I will consider the resolution of the General Court of Connecti
cut as the exercise of a legislative, and not a judicial, authority. The questio
n, then, which arises on the pleadings in this cause is whether the resolution o
f the Legislature of Connecticut be an ex post facto law within the meaning of t
he Constitution of the United States. I am of opinion that it is not. The words
"ex post facto," when applied to a law, have a technical meaning, and in legal p
hraseology refer to crimes, pains, and penalties. Judge Blackstone's description
of the terms is clear and accurate. "There is," says he,
"a still more unreasonable method than this, which is called making of laws, ex
post facto, when after an action, indifferent in itself, is committed, the legis
lator then, for the first time, declares it to have been a crime and inflicts a
punishment upon the person who has committed it. Here it is impossible that the
party could foresee that an action, innocent when it was done, should be afterwa
rds converted to guilt by a subsequent law; he had, therefore, no cause to absta
in from it, and all punishment for not abstaining, must of consequence be cruel
and unjust."
1 Bl.Com. 46. Here the meaning annexed to the terms "ex post facto laws" unquest
ionably refers to crimes and nothing else. The historic page abundantly evinces
that the power of passing such laws should be withheld from legislators, as it i
s a dangerous instrument in the hands of bold, unprincipled, aspiring, and party
men, and has been two often used to effect the most detestable purposes.
On inspecting such of our state constitutions as take notice of laws made ex pos
t facto, we shall find that they are understood in the same sense.
The Constitution of Massachusetts, article 24th of the Declaration of rights.
"Laws made to punish for actions done before the existence of such laws, and whi
ch have not been declared crimes by preceding laws, are unjust, oppressive, and
inconsistent with the fundamental principles of a free government."
The Constitution of Delaware, article 11 of the Declaration of Rights:
Page 3 U. S. 397
"That retrospective laws punishing offenses committed before the existence of su
ch laws are oppressive and unjust, and ought not to be made."
The Constitution of Maryland, article 15 of the Declaration of Rights:
"That retrospective laws punishing facts committed before the existence of such
laws and by them only declared criminal are oppressive, unjust, and incompatible
with liberty, wherefore no ex post facto law ought to be made."
The Constitution of North Carolina, article 24 of the Declaration of Rights:
"That retrospective laws punishing facts committed before the existence of such
laws and by them only declared criminal are oppressive, unjust, and incompatible
with liberty, wherefore no ex post facto law ought to be made."
From the above passages it appears that ex post facto laws have an appropriate s
ignification; they extend to penal statutes, and no further; they are restricted
in legal estimation to the creation, and perhaps enhancement of crimes, pains,
and penalties. The enhancement of a crime or penalty seems to come within the sa
me mischief as the creation of a crime or penalty, and therefore they may be cla
ssed together.
Again, the words of the Constitution of the United States are "That no state sha
ll pass any bill of attainder, ex post facto law, or law impairing the obligatio
n of contracts." Article I, section 10.
Where is the necessity or use of the latter words if a law impairing the obligat
ion of contracts be comprehended within the terms "ex post facto law?" It is obv
ious from the specification of contracts in the last member of the clause that t
he framers of the Constitution did not understand or use the words in the sense
contended for on the part of the plaintiffs in error. They understood and used t
he words in their known and appropriate signification, as referring to crimes, p
ains, and penalties, and no further. The arrangement of the distinct members of
this section necessarily points to this meaning.
I had an ardent desire to have extended the provision in the Constitution to ret
rospective laws in general. There is neither policy nor safety in such laws, and
therefore I have always had a strong aversion against them. It may in general b
e truly observed of retrospective laws of every description that they neither ac
cord with sound legislation nor the fundamental principles of the social compact
. But on full consideration I am convinced that ex post facto laws must be limit
ed in the manner already expressed; they must be taken in their technical, which
is also their common and general, acceptation, and are not to be understood in
their literal sense.
Page 3 U. S. 398
IREDELL, JUSTICE.
Though I concur in the general result of the opinions which have been delivered,
I cannot entirely adopt the reasons that are assigned upon the occasion.
From the best information to be collected, relative to the Constitution of Conne
cticut, it appears that the legislature of that state has been in the uniform un
interrupted habit of exercising a general superintending power over its courts o
f law by granting new trials. It may indeed appear strange to some of us that in
any form there should exist a power to grant, with respect to suits depending o
r adjudged, new rights of trial, new privileges of proceeding not previously rec
ognized and regulated by positive institutions, but such is the established usag
e of Connecticut, and it is obviously consistent with the general superintending
authority of her legislature. Nor is it altogether without some sanction for a
legislature to act as a court of justice. In England, we know that one branch of
the Parliament, the House of Lords, not only exercises a judicial power in case
s of impeachment and for the trial of its own members, but as the court of derni
er resort, takes cognizance of many suits at law, and in equity. And that in con
struction of law, the jurisdiction there exercised is by the King in full Parlia
ment, which shows that in its origin, the causes were probably heard before the
whole Parliament. When Connecticut was settled, the right of empowering her legi
slature to superintend the courts of justice was, I presume, early assumed, and
its expediency, as applied to the local circumstances and municipal policy of th
e state, is sanctioned by a long and uniform practice. The power, however, is ju
dicial in its nature, and whenever it is exercised, as in the present instance,
it is an exercise of judicial, not of legislative, authority.
But, let us for a moment suppose, that the resolution granting a new trial was a
legislative act, it will by no means follow that it is an act affected by the c
onstitutional prohibition that "no state shall pass any ex post facto law." I wi
ll endeavor to state the general principles which influence me on this point suc
cinctly and clearly, though I have not had an opportunity to reduce my opinion t
o writing.
If, then, a government, composed of legislative, executive and judicial departme
nts, were established by a constitution which imposed no limits on the legislati
ve power, the consequence would inevitably be that whatever the legislative powe
r chose to enact would be lawfully enacted, and the judicial power could never i
nterpose to pronounce it void. It is true that some speculative jurists have hel
d that a legislative act against natural justice must in itself be void, but I c
annot think that under such a government any court of justice would possess a po
wer to declare it so. Sir William Blackstone, having put the strong case of an a
ct of Parliament which should
Page 3 U. S. 399
authorize a man to try his own cause, explicitly adds that even in that case,
"there is no court that has power to defeat the intent of the legislature when c
ouched in such evident and express words as leave no doubt whether it was the in
tent of the legislature or no."
1 Bl.Com. 91.
In order, therefore, to guard against so great an evil, it has been the policy o
f all the American states which have individually framed their state constitutio
ns since the Revolution, and of the people of the United States when they framed
the federal Constitution, to define with precision the objects of the legislati
ve power and to restrain its exercise within marked and settled boundaries. If a
ny act of Congress or of the legislature of a state violates those constitutiona
l provisions, it is unquestionably void, though I admit that as the authority to
declare it void is of a delicate and awful nature, the court will never resort
to that authority but in a clear and urgent case. If, on the other hand, the leg
islature of the Union or the legislature of any member of the Union shall pass a
law within the general scope of its constitutional power, the court cannot pron
ounce it to be void merely because it is in its judgment contrary to the princip
les of natural justice. The ideas of natural justice are regulated by no fixed s
tandard; the ablest and the purest men have differed upon the subject, and all t
hat the court could properly say in such an event would be that the legislature
(possessed of an equal right of opinion) had passed an act which, in the opinion
of the judges, was inconsistent with the abstract principles of natural justice
.
There are then but two lights in which the subject can be viewed: 1st. If the le
gislature pursue the authority delegated to it, its acts are valid. 2d. If it tr
ansgresses the boundaries of that authority, its acts are invalid. In the former
case, it exercises the discretion vested in it by the people, to whom alone it
is responsible for the faithful discharge of its trust, but in the latter case i
t violates a fundamental law which must be our guide whenever we are called upon
as judges to determine the validity of a legislative act.
Still, however, in the present instance, the act or resolution of the Legislatur
e of Connecticut cannot be regarded as an ex post facto law, for the true constr
uction of the prohibition extends to criminal, not to civil, cases. It is only i
n criminal cases, indeed, in which the danger to be guarded against is greatly t
o be apprehended. The history of every country in Europe will furnish flagrant i
nstances of tyranny exercised under the pretext of penal dispensations. Rival fa
ctions, in their efforts to crush each other, have superseded all the forms and
suppressed all the sentiments of justice, while attainders, on the principle of
retaliation and proscription, have marked all the
Page 3 U. S. 400
vicissitudes of party triumph. The temptation to such abuses of power is unfortu
nately too alluring for human virtue, and therefore the framers of the American
Constitutions have wisely denied to the respective legislatures, federal as well
as state, the possession of the power itself. They shall not pass any ex post f
acto law, or, in other words, they shall not inflict a punishment for any act, w
hich was innocent at the time it was committed, nor increase the degree of punis
hment previously denounced for any specific offense.
The policy, the reason and humanity, of the prohibition do not, I repeat, extend
 to civil cases, to cases that merely affect the private property of citizens. S
ome of the most necessary and important acts of legislation are, on the contrary
, founded upon the principle that private rights must yield to public exigencies
. Highways are run through private grounds. Fortifications, lighthouses, and oth
er public edifices are necessarily sometimes built upon the soil owned by indivi
duals. In such and similar cases, if the owners should refuse voluntarily to acc
ommodate the public, they must be constrained, as far as the public necessities
require, and justice is done by allowing them a reasonable equivalent. Without t
he possession of this power, the operations of government would often be obstruc
ted and society itself would be endangered. It is not sufficient to urge that th
e power may be abused, for such is the nature of all power, such is the tendency
of every human institution, and it might as fairly be said that the power of ta
xation, which is only circumscribed by the discretion of the body in which it is
vested, ought not to be granted, because the legislature, disregarding its true
objects, might, for visionary and useless projects, impose a tax to the amount
of nineteen shillings in the pound. We must be content to limit power where we c
an, and where we cannot, consistently with its use, we must be content to repose
a salutary confidence. It is our consolation that there never existed a governm
ent in ancient or modern times more free from danger in this respect than the go
vernments of America.
Upon the whole, though there cannot be a case in which an ex post facto law in c
riminal matters is requisite or justifiable (for providence never can intend to
promote the prosperity of any country by bad means), yet in the present instance
, the objection does not arise, because, 1st, if the act of the Legislature of C
onnecticut was a judicial act, it is not within the words of the Constitution, a
nd 2d, even if it was a legislative act, it is not within the meaning of the pro
hibition.
CUSHING, JUSTICE.
The case appears to me to be clear of all difficulty, taken either way. If the a
ct is a judicial act, it is not touched by the federal Constitution, and if it i
s a legislative
Page 3 U. S. 401
act, it is maintained and justified by the ancient and uniform practice of the S
tate of Connecticut.
Judgment affirmed.
U.S. Supreme Court
Lochner v. New York, 198 U.S. 45 (1905)
Lochner v. New York
No. 292
Argued February 23, 24, 1905
Decided April 17, 1906
198 U.S. 45
ERROR TO THE COUNTY COURT OF ONEIDA COUNTY,
STATE OF NEW YORK
Syllabus
The general right to make a contract in relation to his business is part of the
liberty protected by the Fourteenth Amendment, and this includes the right to pu
rchase and sell labor, except as controlled by the State in the legitimate exerc
ise of its police power.
Liberty of contract relating to labor includes both parties to it; the one has a
s much right to purchase as the other to sell labor.
There is no reasonable ground, on the score of health, for interfering with the
liberty of the person or the right of free contract, by determining the hours of
labor, in the occupation of a baker. Nor can a law limiting such hours be justi
fied a a health law to safeguard the public health, or the health of the individ
uals following that occupation.
Section 110 of the labor law of the State of New York, providing that no employe
s shall be required or permitted to work in bakeries more than sixty hours in a
week, or ten hours a day, is not a legitimate exercise of the police power of th
e State, but an unreasonable, unnecessary and arbitrary interference with the ri
ght and liberty of the individual to contract in relation to labor, and, as such
, it is in conflict with, and void under, the Federal Constitution.
This is a writ of error to the County Court of Oneida County, in the State of Ne
w York (to which court the record had been remitted), to review the judgment of
the Court of Appeal of that State affirming the judgment of the Supreme Court, w
hich itself affirmed the judgment of the County Court, convicting the defendant
of a misdemeanor on an indictment under a statute of that State, known, by its s
hort title, as the labor
Page 198 U. S. 46
law. The section of the statute under which the indictment was found is section
110, and is reproduced in the margin, * (together with the other sections of the
labor law upon the subject of bakeries, being sections 111 to 115, both inclusi
ve). The indictment averred that the defendant
"wrongfully and unlawfully required and permitted an employee working for him in
his biscuit, bread and cake bakery and confectionery establishment, at the city
of Utica, in this county, to work more than sixty hours in one week,"
after having been theretofore convicted of a violation of the same act, and ther
efore, as averred, he committed the crime or misdemeanor, second offense. The pl
aintiff in error demurred to the indictment on several grounds, one of which was
that the facts stated did not
Page 198 U. S. 47
constitute a crime. The demurrer was overruled, and the plaintiff in error havin
g refused to plead further, a plea of not guilty was entered by order of the cou
rt and the trial commenced, and he was convicted of misdemeanor, second offense,
as indicted, and sentenced to pay a fine of $50 and to stand committed until pa
id, not to exceed fifty days in the Oneida County jail. A certificate of reasona
ble doubt was granted by the county judge of Oneida County, whereon an appeal wa
s taken to the Appellate Division of the Supreme Court, Fourth Department, where
the judgment of conviction was affirmed. 73 App.Div.N.Y. 120. A further appeal
was then taken to the Court of Appeals, where the judgment of conviction was aga
in affirmed. 177 N.Y. 145.
Page 198 U. S. 52
MR. JUSTICE PECKHAM, after making the foregoing statement of the facts, delivere
d the opinion of the court.
The indictment, it will be seen, charges that the plaintiff in error violated th
e one hundred and tenth section of article 8, chapter 415, of the Laws of 1897,
known as the labor law of the State of New York, in that he wrongfully and unlaw
fully required and permitted an employee working for him to work more than sixty
hours in one week. There is nothing in any of the opinions delivered in this ca
se, either in the Supreme Court or the Court of Appeals of the State, which cons
trues the section, in using the word "required," as referring to any physical fo
rce being used to obtain the labor of an employee. It is assumed that the word m
eans nothing more than the requirement arising from voluntary contract for such
labor in excess of the number of hours specified in the statute. There is no pre
tense in any of the opinions that the statute was intended to meet a case of inv
oluntary labor in any form. All the opinions assume that there is no real distin
ction, so far as this question is concerned, between the words "required" and "p
ermitted." The mandate of the statute that "no employee shall be required or per
mitted to work," is the substantial equivalent of an enactment that "no employee
shall contract or agree to work," more than ten hours per day, and, as there is
no provision for special emergencies, the statute is mandatory in all cases. It
is not an act merely fixing the number of hours which shall constitute a legal
day's work, but an absolute prohibition upon the employer's permitting, under an
y circumstances, more than ten hours' work to be done in his establishment. The
employee may desire to earn the extra money which would arise from his working m
ore than the prescribed
Page 198 U. S. 53
time, but this statute forbids the employer from permitting the employee to earn
it.
The statute necessarily interferes with the right of contract between the employ
er and employes concerning the number of hours in which the latter may labor in
the bakery of the employer. The general right to make a contract in relation to
his business is part of the liberty of the individual protected by the Fourteent
h Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U. S. 578. U
nder that provision, no State can deprive any person of life, liberty or propert
y without due process of law. The right to purchase or to sell labor is part of
the liberty protected by this amendment unless there are circumstances which exc
lude the right. There are, however, certain powers, existing in the sovereignty
of each State in the Union, somewhat vaguely termed police powers, the exact des
cription and limitation of which have not been attempted by the courts. Those po
wers, broadly stated and without, at present, any attempt at a more specific lim
itation, relate to the safety, health, morals and general welfare of the public.
Both property and liberty are held on such reasonable conditions as may be impo
sed by the governing power of the State in the exercise of those powers, and wit
h such conditions the Fourteenth Amendment was not designed to interfere. Mugler
v. Kansas, 123 U. S. 623; In re Kemmler, 136 U. S. 436; Crowley v. Christensen,
137 U. S. 86; In re Converse, 137 U. S. 624.
The State therefore has power to prevent the individual from making certain kind
s of contracts, and, in regard to them, the Federal Constitution offers no prote
ction. If the contract be one which the State, in the legitimate exercise of its
police power, has the right to prohibit, it is not prevented from prohibiting i
t by the Fourteenth Amendment. Contracts in violation of a statute, either of th
e Federal or state government, or a contract to let one's property for immoral p
urposes, or to do any other unlawful act, could obtain no protection from the Fe
deral Constitution as coming under the liberty of
Page 198 U. S. 54
person or of free contract. Therefore, when the State, by its legislature, in th
e assumed exercise of its police powers, has passed an act which seriously limit
s the right to labor or the right of contract in regard to their means of liveli
hood between persons who are sui juris (both employer and employee), it becomes
of great importance to determine which shall prevail -- the right of the individ
ual to labor for such time as he may choose or the right of the State to prevent
the individual from laboring or from entering into any contract to labor beyond
a certain time prescribed by the State.
This court has recognized the existence and upheld the exercise of the police po
wers of the States in many cases which might fairly be considered as border ones
, and it has, in the course of its determination of questions regarding the asse
rted invalidity of such statutes on the ground of their violation of the rights
secured by the Federal Constitution, been guided by rules of a very liberal natu
re, the application of which has resulted, in numerous instances, in upholding t
he validity of state statutes thus assailed. Among the later cases where the sta
te law has been upheld by this court is that of Holden v. Hardy, 169 U. S. 366.
A provision in the act of the legislature of Utah was there under consideration,
the act limiting the employment of workmen in all underground mines or workings
to eight hours per day "except in cases of emergency, where life or property is
in imminent danger." It also limited the hours of labor in smelting and other i
nstitutions for the reduction or refining of ores or metals to eight hours per d
ay except in like cases of emergency. The act was held to be a valid exercise of
the police powers of the State. A review of many of the cases on the subject, d
ecided by this and other courts, is given in the opinion. It was held that the k
ind of employment, mining, smelting, etc., and the character of the employes in
such kinds of labor, were such as to make it reasonable and proper for the State
to interfere to prevent the employees from being constrained by the rules laid
down by the proprietors in regard to labor. The following citation
Page 198 U. S. 55
from the observations of the Supreme Court of Utah in that case was made by the
judge writing the opinion of this court, and approved:
"The law in question is confined to the protection of that class of people engag
ed in labor in underground mines and in smelters and other works wherein ores ar
e reduced and refined. This law applies only to the classes subjected by their e
mployment to the peculiar conditions and effects attending underground mining an
d work in smelters and other works for the reduction and refining of ores. There
fore it is not necessary to discuss or decide whether the legislature can fix th
e hours of labor in other employments."
It will be observed that, even with regard to that class of labor, the Utah stat
ute provided for cases of emergency wherein the provisions of the statute would
not apply. The statute now before this court has no emergency clause in it, and,
if the statute is valid, there are no circumstances and no emergencies under wh
ich the slightest violation of the provisions of the act would be innocent. Ther
e is nothing in Holden v. Hardy which covers the case now before us. Nor does At
kin v. Kansas, 191 U. S. 207, touch the case at bar. The Atkin case was decided
upon the right of the State to control its municipal corporations and to prescri
be the condition upon which it will permit work of a public character to be done
for a municipality. Knoxville Iron Co. v. Harbison, 183 U. S. 13, is equally fa
r from an authority for this legislation. The employees in that case were held t
o be at a disadvantage with the employer in matters of wages, they being miners
and coal workers, and the act simply provided for the cashing of coal orders whe
n presented by the miner to the employer.
The latest case decided by this court involving the police power is that of Jaco
bson v. Massachusetts, decided at this term and reported in 197 U. S. 197 U.S. 1
1. It related to compulsory vaccination, and the law was held valid as a proper
exercise of the police powers with reference to the public health. It was stated
in the opinion that it was a case
"of an adult who, for aught that appears, was himself in perfect health and a fi
t
Page 198 U. S. 56
subject for vaccination, and yet, while remaining in the community, refused to o
bey the statute and the regulation adopted in execution of its provisions for th
e protection of the public health and the public safety, confessedly endangered
by the presence of a dangerous disease."
That case is also far from covering the one now before the court.
Petit v. Minnesota, 177 U. S. 164, was upheld as a proper exercise of the police
power relating to the observance of Sunday, and the case held that the legislat
ure had the right to declare that, as matter of law, keeping barber shops open o
n Sunday was not a work of necessity or charity.
It must, of course, be conceded that there is a limit to the valid exercise of t
he police power by the State. There is no dispute concerning this general propos
ition. Otherwise the Fourteenth Amendment would have no efficacy, and the legisl
atures of the States would have unbounded power, and it would be enough to say t
hat any piece of legislation was enacted to conserve the morals, the health or t
he safety of the people; such legislation would be valid no matter how absolutel
y without foundation the claim might be. The claim of the police power would be
a mere pretext -- become another and delusive name for the supreme sovereignty o
f the State to be exercised free from constitutional restraint. This is not cont
ended for. In every case that comes before this court, therefore, where legislat
ion of this character is concerned and where the protection of the Federal Const
itution is sought, the question necessarily arises: is this a fair, reasonable a
nd appropriate exercise of the police power of the State, or is it an unreasonab
le, unnecessary and arbitrary interference with the right of the individual to h
is personal liberty or to enter into those contracts in relation to labor which
may seem to him appropriate or necessary for the support of himself and his fami
ly? Of course, the liberty of contract relating to labor includes both parties t
o it. The one has as much right to purchase as the other to sell labor.
This is not a question of substituting the judgment of the
Page 198 U. S. 57
court for that of the legislature. If the act be within the power of the State,
it is valid although the judgment of the court might be totally opposed to the e
nactment of such a law. But the question would still remain: is it within the po
lice power of the State?, and that question must be answered by the court.
The question whether this act is valid as a labor law, pure and simple, may be d
ismissed in a few words. There is no reasonable ground for interfering with the
liberty of person or the right of free contract by determining the hours of labo
r in the occupation of a baker. There is no contention that bakers as a class ar
e not equal in intelligence and capacity to men in other trades or manual occupa
tions, or that they are able to assert their rights and care for themselves with
out the protecting arm of the State, interfering with their independence of judg
ment and of action. They are in no sense wards of the State. Viewed in the light
of a purely labor law, with no reference whatever to the question of health, we
think that a law like the one before us involves neither the safety, the morals
, nor the welfare of the public, and that the interest of the public is not in t
he slightest degree affected by such an act. The law must be upheld, if at all,
as a law pertaining to the health of the individual engaged in the occupation of
a baker. It does not affect any other portion of the public than those who are
engaged in that occupation. Clean and wholesome bread does not depend upon wheth
er the baker works but ten hours per day or only sixty hours a week. The limitat
ion of the hours of labor does not come within the police power on that ground.
It is a question of which of two powers or rights shall prevail -- the power of
the State to legislate or the right of the individual to liberty of person and f
reedom of contract. The mere assertion that the subject relates though but in a
remote degree to the public health does not necessarily render the enactment val
id. The act must have a more direct relation, as a means to an end, and the end
itself must be appropriate and legitimate, before an act can be held to be valid
which interferes
Page 198 U. S. 58
with the general right of an individual to be free in his person and in his powe
r to contract in relation to his own labor.
This case has caused much diversity of opinion in the state courts. In the Supre
me Court, two of the five judges composing the Appellate Division dissented from
the judgment affirming the validity of the act. In the Court of Appeals, three
of the seven judges also dissented from the judgment upholding the statute. Alth
ough found in what is called a labor law of the State, the Court of Appeals has
upheld the act as one relating to the public health -- in other words, as a heal
th law. One of the judges of the Court of Appeals, in upholding the law, stated
that, in his opinion, the regulation in question could not be sustained unless t
hey were able to say, from common knowledge, that working in a bakery and candy
factory was an unhealthy employment. The judge held that, while the evidence was
not uniform, it still led him to the conclusion that the occupation of a baker
or confectioner was unhealthy, and tended to result in diseases of the respirato
ry organs. Three of the judges dissented from that view, and they thought the oc
cupation of a baker was not to such an extent unhealthy as to warrant the interf
erence of the legislature with the liberty of the individual.
We think the limit of the police power has been reached and passed in this case.
There is, in our judgment, no reasonable foundation for holding this to be nece
ssary or appropriate as a health law to safeguard the public health or the healt
h of the individuals who are following the trade of a baker. If this statute be
valid, and if, therefore, a proper case is made out in which to deny the right o
f an individual, sui juris, as employer or employee, to make contracts for the l
abor of the latter under the protection of the provisions of the Federal Constit
ution, there would seem to be no length to which legislation of this nature migh
t not go. The case differs widely, as we have already stated, from the expressio
ns of this court in regard to laws of this nature, as stated in Holden v. Hardy
and Jacobson v. Massachusetts, supra.
Page 198 U. S. 59
We think that there can be no fair doubt that the trade of a baker, in and of it
self, is not an unhealthy one to that degree which would authorize the legislatu
re to interfere with the right to labor, and with the right of free contract on
the part of the individual, either as employer or employee. In looking through s
tatistics 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 vast
ly more healthy than still others. To the common understanding, the trade of a b
aker has never been regarded as an unhealthy one. Very likely, physicians would
not recommend the exercise of that or of any other trade as a remedy for ill hea
lth. Some occupations are more healthy than others, but we think there are none
which might not come under the power of the legislature to supervise and control
the hours of working therein if the mere fact that the occupation is not absolu
tely and perfectly healthy is to confer that right upon the legislative departme
nt of the Government. It might be safely affirmed that almost all occupations mo
re or less affect the health. There must be more than the mere fact of the possi
ble existence of some small amount of unhealthiness to warrant legislative inter
ference with liberty. It is unfortunately true that labor, even in any departmen
t, may possibly carry with it the seeds of unhealthiness. But are we all, on tha
t account, at the mercy of legislative majorities? A printer, a tinsmith, a lock
smith, a carpenter, a cabinetmaker, a dry goods clerk, a bank's, a lawyer's or a
physician's clerk, or a clerk in almost any kind of business, would all come un
der the power of the legislature on this assumption. No trade, no occupation, no
mode of earning one's living could escape this all-pervading power, and the act
s of the legislature in limiting the hours of labor in all employments would be
valid although such limitation might seriously cripple the ability of the labore
r to support himself and his family. In our large cities there are many building
s into which the sun penetrates for but a short time in each day, and these buil
dings are occupied by people carrying on the
Page 198 U. S. 60
business of bankers, brokers, lawyers, real estate, and many other kinds of busi
ness, aided by many clerks, messengers, and other employs. Upon the assumption o
f the validity of this act under review, it is not possible to say that an act p
rohibiting lawyers' or bank clerks, or others from contracting to labor for thei
r employers more than eight hours a day would be invalid. It might be said that
it is unhealthy to work more than that number of hours in an apartment lighted b
y artificial light during the working hours of the day; that the occupation of t
he bank clerk, the lawyer's clerk, the real estate clerk, or the broker's clerk
in such offices is therefore unhealthy, and the legislature, in its paternal wis
dom, must therefore have the right to legislate on the subject of, and to limit
the hours for, such labor, and, if it exercises that power and its validity be q
uestioned, it is sufficient to say it has reference to the public health; it has
reference to the health of the employees condemned to labor day after day in bu
ildings where the sun never shines; it is a health law, and therefore it is vali
d, and cannot be questioned by the courts.
It is also urged, pursuing the same line of argument, that it is to the interest
of the State that its population should be strong and robust, and therefore any
legislation which may be said to tend to make people healthy must be valid as h
ealth laws, enacted under the police power. If this be a valid argument and a ju
stification for this kind of legislation, it follows that the protection of the
Federal Constitution from undue interference with liberty of person and freedom
of contract is visionary wherever the law is sought to be justified as a valid e
xercise of the police power. Scarcely any law but might find shelter under such
assumptions, and conduct, properly so called, as well as contract, would come un
der the restrictive sway of the legislature. Not only the hours of employees, bu
t the hours of employers, could be regulated, and doctors, lawyers, scientists,
all professional men, as well as athletes and artisans, could be forbidden to fa
tigue their brains and bodies by prolonged hours of exercise, lest the fighting
strength
Page 198 U. S. 61
of the State be impaired. We mention these extreme cases because the contention
is extreme. We do not believe in the soundness of the views which uphold this la
w. On the contrary, we think that such a law as this, although passed in the ass
umed exercise of the police power, and as relating to the public health, or the
health of the employees named, is not within that power, and is invalid. The act
 is not, within any fair meaning of the term, a health law, but is an illegal in
terference with the rights of individuals, both employers and employees, to make
contracts regarding labor upon such terms as they may think best, or which they
may agree upon with the other parties to such contracts. Statutes of the nature
of that under review, limiting the hours in which grown and intelligent men may
labor to earn their living, are mere meddlesome interferences with the rights o
f the individual, and they are not saved from condemnation by the claim that the
y are passed in the exercise of the police power and upon the subject of the hea
lth of the individual whose rights are interfered with, unless there be some fai
r ground, reasonable in and of itself, to say that there is material danger to t
he public health or to the health of the employees if the hours of labor are not
curtailed. If this be not clearly the case, the individuals whose rights are th
us made the subject of legislative interference are under the protection of the
Federal Constitution regarding their liberty of contract as well as of person, a
nd the legislature of the State has no power to limit their right as proposed in
this statute. All that it could properly do has been done by it with regard to
the conduct of bakeries, as provided for in the other sections of the act above
set forth. These several sections provide for the inspection of the premises whe
re the bakery is carried on, with regard to furnishing proper wash-rooms and wat
er-closets, apart from the bake-room, also with regard to providing proper drain
age, plumbing and painting; the sections, in addition, provide for the height of
the ceiling, the cementing or tiling of floors, where necessary in the opinion
of the factory inspector, and for other things of
Page 198 U. S. 62
that nature; alterations are also provided for and are to be made where necessar
y in the opinion of the inspector, in order to comply with the provisions of the
statute. These various sections may be wise and valid regulations, and they cer
tainly go to the full extent of providing for the cleanliness and the healthines
s, so far as possible, of the quarters in which bakeries are to be conducted. Ad
ding to all these requirements a prohibition to enter into any contract of labor
in a bakery for more than a certain number of hours a week is, in our judgment,
so wholly beside the matter of a proper, reasonable and fair provision as to ru
n counter to that liberty of person and of free contract provided for in the Fed
eral Constitution.
It was further urged on the argument that restricting the hours of labor in the
case of bakers was valid because it tended to cleanliness on the part of the wor
kers, as a man was more apt to be cleanly when not overworked, and, if cleanly,
then his "output" was also more likely to be so. What has already been said appl
ies with equal force to this contention. We do not admit the reasoning to be suf
ficient to justify the claimed right of such interference. The State in that cas
e would assume the position of a supervisor, or pater familias, over every act o
f the individual, and its right of governmental interference with his hours of l
abor, his hours of exercise, the character thereof, and the extent to which it s
hall be carried would be recognized and upheld. In our judgment, it is not possi
ble, in fact, to discover the connection between the number of hours a baker may
work in the bakery and the healthful quality of the bread made by the workman.
The connection, if any exists, is too shadowy and thin to build any argument for
the interference of the legislature. If the man works ten hours a day, it is al
l right, but if ten and a half or eleven, his health is in danger and his bread
may be unhealthful, and, therefore, he shall not be permitted to do it. This, we
think, is unreasonable, and entirely arbitrary. When assertions such as we have
adverted to become necessary in order to give, if possible, a plausible foundat
ion for the contention that the law is a "health law,"
Page 198 U. S. 63
it gives rise to at least a suspicion that there was some other motive dominatin
g the legislature than the purpose to subserve the public health or welfare.
This interference on the part of the legislatures of the several States with the
ordinary trades and occupations of the people seems to be on the increase. In t
he Supreme Court of New York, in the case of People v. Beattie, Appellate Divisi
on, First Department, decided in 1904, 89 N.Y.Supp. 193, a statute regulating th
e trade of horseshoeing, and requiring the person practicing such trade to be ex
amined and to obtain a certificate from a board of examiners and file the same w
ith the clerk of the county wherein the person proposes to practice his trade, w
as held invalid as an arbitrary interference with personal liberty and private p
roperty without due process of law. The attempt was made, unsuccessfully, to jus
tify it as a health law.
The same kind of a statute was held invalid (In re Aubry) by the Supreme Court o
f Washington in December, 1904. 78 Pac.Rep. 900. The court held that the act dep
rived citizens of their liberty and property without due process of law and deni
ed to them the equal protection of the laws. It also held that the trade of a ho
rseshoer is not a subject of regulation under the police power of the State as a
business concerning and directly affecting the health, welfare or comfort of it
s inhabitants, and that, therefore, a law which provided for the examination and
registration of horseshoers in certain cities was unconstitutional as an illegi
timate exercise of the police power.
The Supreme Court of Illinois in Bessette v. People, 193 Illinois 334, also held
that a law of the same nature, providing for the regulation and licensing of ho
rseshoers, was unconstitutional as an illegal interference with the liberty of t
he individual in adopting and pursuing such calling as he may choose, subject on
ly to the restraint necessary secure the common welfare. See also Godcharles v.
Wigeman, 113 Pa. St. 431, 437; Low v. Rees Printing Co., 41 Nebraska 127, 145. I
n
Page 198 U. S. 64
these cases, the courts upheld the right of free contract and the right to purch
ase and sell labor upon such terms as the parties may agree to.
It is impossible for us to shut our eyes to the fact that many of the laws of th
is character, while passed under what is claimed to be the police power for the
purpose of protecting the public health or welfare, are, in reality, passed from
other motives. We are justified in saying so when, from the character of the la
w and the subject upon which it legislates, it is apparent that the public healt
h or welfare bears but the most remote relation to the law. The purpose of a sta
tute must be determined from the natural and legal effect of the language employ
ed, and whether it is or is not repugnant to the Constitution of the United Stat
es must be determined from the natural effect of such statutes when put into ope
ration, and not from their proclaimed purpose. Minnesota v. Barber, 136 U. S. 31
3; Brimmer v. Rebman, 138 U. S. 78. The court looks beyond the mere letter of th
e law in such cases. Yick Wo v. Hopkins, 118 U. S. 356.
It is manifest to us that the limitation of the hours of labor as provided for i
n this section of the statute under which the indictment was found, and the plai
ntiff in error convicted, has no such direct relation to, and no such substantia
l effect upon, the health of the employee as to justify us in regarding the sect
ion as really a health law. It seems to us that the real object and purpose were
simply to regulate the hours of labor between the master and his employees (all
being men sui juris) in a private business, not dangerous in any degree to mora
ls or in any real and substantial degree to the health of the employees. Under s
uch circumstances, the freedom of master and employee to contract with each othe
r in relation to their employment, and in defining the same, cannot be prohibite
d or interfered with without violating the Federal Constitution.
The judgment of the Court of Appeals of New York, as well as that of the Supreme
Court and of the County Court of Oneida County, must be reversed, and the case
remanded to
Page 198 U. S. 65
the County Court for further proceedings not inconsistent with this opinion.
Reversed.
*
"§ 110. Hours of labor in bakeries and confectionery establishments. -- No employe
e shall be required or permitted to work in a biscuit, bread or cake bakery or c
onfectionery establishment more than sixty hours in any one week, or more than t
en hours in any one day, unless for the purpose of making a shorter work day on
the last day of the week; nor more hours in any one week than will make an avera
ge of ten hours per day for the number of days during such week in which such em
ployee shall work."
"§ 111. Drainage and plumbing of building and rooms occupied by bakeries. -- All b
uildings or rooms occupied as biscuit, bread, pie or cake bakeries shall be drai
ned and plumbed in a manner conducive to the proper and healthful sanitary condi
tion thereof, and shall be constructed with air shafts, windows or ventilating p
ipes, sufficient to insure ventilation. The factory inspector may direct the pro
per drainage, plumbing and ventilation of such rooms or buildings. No cellar or
basement not now used for a bakery shall hereafter be so occupied or used unless
the proprietor shall comply with the sanitary provisions of this article."
"§ 112. Requirements as to rooms, furniture, utensils and manufactured products. -
- Every room used for the manufacture of flour or meal food products shall be at
least eight feet in height and shall have, if deemed necessary by the factory i
nspector, an impermeable floor constructed of cement, or of tiles laid in cement
, or an additional flooring of wood properly saturated with linseed oil. The sid
e walls of such rooms shall be plastered or wainscoted. The factory inspector ma
y require the side walls and ceiling to be whitewashed at least once in three mo
nths. He may also require the woodwork of such walls to be painted. The furnitur
e and utensils shall be so arranged as to be readily cleansed and not prevent th
e proper cleaning of any part of a room. The manufactured flour or meal food pro
ducts shall be kept in dry and airy rooms, so arranged that the floors, shelves
and all other facilities for storing the same can be properly cleaned. No domest
ic animal, except cats, shall be allowed to remain in a room used as a biscuit,
bread, pie, or cake bakery, or any room in such bakery where flour or meal produ
ct are stored."
"§ 113. Wash-rooms and closets; sleeping places. -- Every such bakery shall be pro
vided with a proper washroom and water-closet or water-closet apart from the bak
e-room, or room where the manufacture of such food product is conducted, and no
water-closet, earth-closet, privy or ash-pit shall be within or connected direct
ly with the bake-room of any bakery, hotel or public restaurant."
"No person shall sleep in a room occupied as a bake-room. Sleeping places for th
e persons employed in the bakery shall be separate from the rooms where flour or
meal food products are manufactured or stored. If the sleeping places are on th
e same floor where such products are manufactured, stored or sold, the factory i
nspector may inspect and order them put in a proper sanitary condition."
"§ 114. Inspection of bakeries. -- The factory inspector shall cause all bakeries
to be inspected. If it be found upon such inspection that the bakeries so inspec
ted are constructed and conducted in compliance with the provisions of this chap
ter, the factory inspector shall issue a certificate to the person owning or con
ducting such bakeries."
"§ 115. Notice requiring alterations. -- If, in the opinion of the factory inspect
or, alterations are required in or upon premises occupied and used as bakeries i
n order to comply with the provisions of this article, a written notice shall be
served by him upon the owner, agent or lessee of such premises, either personal
ly or by mail, requiring such alteration to be made within sixty day after such
service, and such alterations hall be made accordingly."
MR. JUSTICE HARLAN, with whom MR. JUSTICE WHITE and MR. JUSTICE DAY concurred, d
issenting.
While this court has not attempted to mark the precise boundaries of what is cal
led the police power of the State, the existence of the power has been uniformly
recognized, both by the Federal and state courts.
All the cases agree that this power extends at least to the protection of the li
ves, the health, and the safety of the public against the injurious exercise by
any citizen of his own rights.
In Patterson v. Kentucky, 97 U. S. 501, after referring to the general principle
that rights given by the Constitution cannot be impaired by state legislation o
f any kind, this court said:
"It [this court] has, nevertheless, with marked distinctness and uniformity, rec
ognized the necessity, growing out of the fundamental conditions of civil societ
y, of upholding state police regulations which were enacted in good faith and ha
d appropriate and direct connection with that protection to life, health, and pr
operty which each State owes to her citizens."
So, in Barbier v. Connolly, 113 U. S. 27:
"But neither the [14th] Amendment -- broad and comprehensive as it is -- nor any
other Amendment was designed to interfere with the power of the State, sometime
s termed its police power, to prescribe regulations to promote the health, peace
, morals, education, and good order of the people."
Speaking generally, the State, in the exercise of its powers, may not unduly int
erfere with the right of the citizen to enter into contracts that may be necessa
ry and essential in the enjoyment of the inherent rights belonging to everyone,
among which rights is the right
"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 lawf
ul calling; to pursue any livelihood or avocation."
This was declared
Page 198 U. S. 66
in Allgeyer v. Louisiana, 165 U. S. 578, 165 U. S. 589. But, in the same case, i
t was conceded that the right to contract in relation to persons and property or
to do business within a State may be "regulated, and sometimes prohibited, when
the contracts or business conflict with the policy of the State as contained in
its statutes." (P. 165 U. S. 591).
So, as said in Holden v. Hardy, 169 U. S. 366, 169 U. S. 391:
"This right of contract, however, is itself subject to certain limitations which
the State may lawfully impose in the exercise of its police powers. While this
power is inherent in all government, it has doubtless been greatly expanded in i
ts application during the past century owing to an enormous increase in the numb
er of occupations which are dangerous, or so far detrimental to the health of th
e employees as to demand special precautions for their wellbeing and protection,
or the safety of adjacent property. While this court has held, notably in the c
ases of Davidson v. New Orleans, 96 U. S. 97, and Yick Wo v. Hopkins, 118 U. S.
356, that the police power cannot be put forward as an excuse for oppressive and
unjust legislation, it may be lawfully resorted to for the purpose of preservin
g the public health, safety or morals, or the abatement of public nuisances, and
a large discretion"
"is necessarily vested in the legislature to determine not only what the interes
ts of the public require, but what measures are necessary for the protection of
such interests."
"Lawton v. Steele, 152 U. S. 133, 152 U. S. 136."
Referring to the limitations placed by the State upon the hours of workmen, the
court in the same case said (p. 118 U. S. 395):
"These employments, when too long pursued, the legislature has judged to be detr
imental to the health of the employees, and, so long as there are reasonable gro
unds for believing that this is so, its decision upon this subject cannot be rev
iewed by the Federal courts."
Subsequently in Gundling v. Chicago, 177 U. S. 183, 177 U. S. 188, this court sa
id:
"Regulations respecting the pursuit of a lawful trade or business are of very fr
equent occurrence in the various cities of the country, and what such regulation
s shall be and
Page 198 U. S. 67
to what particular trade, business or occupation they shall apply are questions
for the State to determine, and their determination comes within the proper exer
cise of the police power by the State, and unless the regulations are so utterly
unreasonable and extravagant in their nature and purpose that the property and
personal rights of the citizen are unnecessarily, and in a manner wholly arbitra
ry, interfered with or destroyed without due process of law, they do not extend
beyond the power of the State to pass, and they form no subject for Federal inte
rference."
"As stated in Crowley v. Christensen, 137 U. S. 86,"
"the possession and enjoyment of all rights are subject to such reasonable condi
tions as may be deemed by the governing authority of the country essential to th
e safety, health, peace, good order and morals of the community."
In St. Louis, Iron Mountain &c. Ry. v. Paul, 173 U. S. 404, 173 U. S. 409, and i
n Knoxville Iron Co. v. Harbison, 183 U. S. 13, 183 U. S. 21, 183 U. S. 22, it w
as distinctly adjudged that the right of contract was not "absolute in respect t
o every matter, but may be subjected to the restraints demanded by the safety an
d welfare of the State." Those cases illustrate the extent to which the State ma
y restrict or interfere with the exercise of the right of contracting.
The authorities on the same line are so numerous that further citations are unne
cessary.
I take it to be firmly established that what is called the liberty of contract m
ay, within certain limits, be subjected to regulations designed and calculated t
o promote the general welfare or to guard the public health, the public morals o
r the public safety. "The liberty secured by the Constitution of the United Stat
es to every person within its jurisdiction does not import," this court has rece
ntly said,
"an absolute right in each person to be, at all times and in all circumstances,
wholly freed from restraint. There are manifold restraints to which every person
is necessarily subject for the common good."
Jacobson v. Massachusetts, 197 U. S. 11.
Page 198 U. S. 68
Granting then that there is a liberty of contract which cannot be violated even
under the sanction of direct legislative enactment, but assuming, as according t
o settled law we may assume, that such liberty of contract is subject to such re
gulations as the State may reasonably prescribe for the common good and the well
being of society, what are the conditions under which the judiciary may declare
such regulations to be in excess of legislative authority and void? Upon this po
int there is no room for dispute, for the rule is universal that a legislative e
nactment, Federal or state, is never to be disregarded or held invalid unless it
be, beyond question, plainly and palpably in excess of legislative power. In Ja
cobson v. Massachusetts, supra, we said that the power of the courts to review l
egislative action in respect of a matter affecting the general welfare exists on
ly
"when that which the legislature has done comes within the rule that, if a statu
te purporting to have been enacted to protect the public health, the public mora
ls or the public safety, has no real or substantial relation to those objects, o
r is, beyond all question, a plain, palpable invasion of rights secured by the f
undamental law"
-- citing Mugler v. Kansas, 123 U. S. 623, 123 U. S. 661; Minnesota v. Barber, 1
36 U. S. 313, 136 U. S. 320; Atkin v. Kansas, 191 U. S. 207, 191 U. S. 223. If t
here be doubt as to the validity of the statute, that doubt must therefore be re
solved in favor of its validity, and the courts must keep their hands off, leavi
ng the legislature to meet the responsibility for unwise legislation. If the end
which the legislature seeks to accomplish be one to which its power extends, an
d if the means employed to that end, although not the wisest or best, are yet no
t plainly and palpably unauthorized by law, then the court cannot interfere. In
other words, when the validity of a statute is questioned, the burden of proof,
so to speak, is upon those who assert it to be unconstitutional. @ 17 U. S. 421.
Let these principles be applied to the present case. By the. statute in question
, it is provided that
"No employee shall be required or permitted to work in a biscuit, bread or cake
Page 198 U. S. 69
bakery or confectionery establishment more than sixty hours in any one week, or
more than ten hours in any one day, unless for the purpose of making a shorter w
ork day on the last day of the week; nor more hours in any one week than will ma
ke an average of ten hours per day for the number of days during such week in wh
ich such employee shall work."
It is plain that this statute was enacted in order to protect the physical wellb
eing of those who work in bakery and confectionery establishments. It may be tha
t the statute had its origin, in part, in the belief that employers and employee
s in such establishments were not upon an equal footing, and that the necessitie
s of the latter often compelled them to submit to such exactions as unduly taxed
their strength. Be this as it may, the statute must be taken as expressing the
belief of the people of New York that, as a general rule, and in the case of the
average man, labor in excess of sixty hours during a week in such establishment
s may endanger the health of those who thus labor. Whether or not this be wise l
egislation it is not the province of the court to inquire. Under our systems of
government, the courts are not concerned with the wisdom or policy of legislatio
n. So that, in determining the question of power to interfere with liberty of co
ntract, the court may inquire whether the means devised by the State are germane
to an end which may be lawfully accomplished and have a real or substantial rel
ation to the protection of health, as involved in the daily work of the persons,
male and female, engaged in bakery and confectionery establishments. But when t
his inquiry is entered upon, I find it impossible, in view of common experience,
to say that there is here no real or substantial relation between the means emp
loyed by the State and the end sought to be accomplished by its legislation. Mug
ler v. Kansas, supra. Nor can I say that the statute has no appropriate or direc
t connection with that protection to health which each State owes to her citizen
s, Patterson v. Kentucky, supra; or that it is not promotive of the health of th
e employees in question, Holden v. Hardy, Lawton v. Steele,
Page 198 U. S. 70
supra; or that the regulation prescribed by the State is utterly unreasonable an
d extravagant or wholly arbitrary, Gundling v. Chicago, supra. Still less can I
say that the statute is, beyond question, a plain, palpable invasion of rights s
ecured by the fundamental law. Jacobson v. Massachusetts, supra. Therefore, I su
bmit that this court will transcend its functions if it assumes to annul the sta
tute of New York. It must be remembered that this statute does not apply to all
kinds of business. It applies only to work in bakery and confectionery establish
ments, in which, as all know, the air constantly breathed by workmen is not as p
ure and healthful as that to be found in some other establishments or out of doo
rs.
Professor Hirt, in his treatise on the "Diseases of the Workers," has said:
"The labor of the bakers is among the hardest and most laborious imaginable, bec
ause it has to be performed under conditions injurious to the health of those en
gaged in it. It is hard, very hard work, not only because it requires a great de
al of physical exertion in an overheated workshop and during unreasonably long h
ours, but more so because of the erratic demands of the public, compelling the b
aker to perform the greater part of his work at night, thus depriving him of an
opportunity to enjoy the necessary rest and sleep, a fact which is highly injuri
ous to his health."
Another writer says:
"The constant inhaling of flour dust causes inflammation of the lungs and of the
bronchial tubes. The eyes also suffer through this dust, which is responsible f
or the many cases of running eyes among the bakers. The long hours of toil to wh
ich all bakers are subjected produce rheumatism, cramps and swollen legs. The in
tense heat in the workshops induces the workers to resort to cooling drinks, whi
ch, together with their habit of exposing the greater part of their bodies to th
e change in the atmosphere, is another source of a number of diseases of various
organs. Nearly all bakers are pale-faced and of more delicate health than the w
orkers of other crafts, which is chiefly due to their hard work and their irregu
lar and unnatural mode of living, whereby the power of resistance against diseas
e is
Page 198 U. S. 71
greatly diminished. The average age of a baker is below that of other workmen; t
hey seldom live over their fiftieth year, most of them dying between the ages of
forty and fifty. During periods of epidemic diseases, the bakers are generally
the first to succumb to the disease, and the number swept away during such perio
ds far exceeds the number of other crafts in comparison to the men employed in t
he respective industries. When, in 1720, the plague visited the city of Marseill
es, France, every baker in the city succumbed to the epidemic, which caused cons
iderable excitement in the neighboring cities and resulted in measures for the s
anitary protection of the bakers."
In the Eighteenth Annual Report by the New York Bureau of Statistics of Labor it
is stated that, among the occupations involving exposure to conditions that int
erfere with nutrition is that of a baker (p. 52). In that Report, it is also sta
ted that,
"from a social point of view, production will be increased by any change in indu
strial organization which diminishes the number of idlers, paupers and criminals
. Shorter hours of work, by allowing higher standards of comfort and purer famil
y life, promise to enhance the industrial efficiency of the wage-working class -
- improved health, longer life, more content and greater intelligence and invent
iveness."
(P. 82).
Statistics show that the average daily working time among workingmen in differen
t countries is, in Australia, 8 hours; in Great Britain, 9; in the United States
, 9; in Denmark, 9; in Norway, 10; Sweden, France and Switzerland, 10; Germany,
10; Belgium, Italy and Austria, 11, and in Russia, 12 hours.
We judicially know that the question of the number of hours during which a workm
an should continuously labor has been, for a long period, and is yet, a subject
of serious consideration among civilized peoples and by those having special kno
wledge of the laws of health. Suppose the statute prohibited labor in bakery and
confectionery establishments in excess of eighteen hours each day. No one, I ta
ke it, could dispute the power of the State to enact such a statute. But the sta
tute
Page 198 U. S. 72
before us does not embrace extreme or exceptional cases. It may be said to occup
y a middle ground in respect of the hours of labor. What is the true ground for
the State to take between legitimate protection, by legislation, of the public h
ealth and liberty of contract is not a question easily solved, nor one in respec
t of which there is or can be absolute certainty. There are very few, if any, qu
estions in political economy about which entire certainty may be predicated. One
writer on relation of the State to labor has well said:
"The manner, occasion, and degree in which the State may interfere with the indu
strial freedom of its citizens is one of the most debatable and difficult questi
ons of social science."
Jevons, 33.
We also judicially know that the number of hours that should constitute a day's
labor in particular occupations involving the physical strength and safety of wo
rkmen has been the subject of enactments by Congress and by nearly all of the St
ates. Many if not most of those enactments fix eight hours as the proper basis o
f a day's labor.
I do not stop to consider whether any particular view of this economic question
presents the sounder theory. What the precise facts are it may be difficult to s
ay. It is enough for the determination of this case, and it is enough for this c
ourt to know, that the question is one about which there is room for debate and
for an honest difference of opinion. There are many reasons of a weighty, substa
ntial character, based upon the experience of mankind, in support of the theory
that, all things considered, more than ten hours' steady work each day, from wee
k to week, in a bakery or confectionery establishment, may endanger the health,
and shorten the lives of the workmen, thereby diminishing their physical and men
tal capacity to serve the State, and to provide for those dependent upon them.
If such reasons exist, that ought to be the end of this case, for the State is n
ot amenable to the judiciary in respect of its legislative enactments unless suc
h enactments are plainly, palpably, beyond all question, inconsistent with the C
onstitution
Page 198 U. S. 73
of the United States. We are not to presume that the State of New York has acted
in bad faith. Nor can we assume that its legislature acted without due delibera
tion, or that it did not determine this question upon the fullest attainable inf
ormation, and for the common good. We cannot say that the State has acted withou
t reason, nor ought we to proceed upon the theory that its action is a mere sham
. Our duty, I submit, is to sustain the statute as not being in conflict with th
e Federal Constitution for the reason -- and such is an all-sufficient reason --
it is not shown to be plainly and palpably inconsistent with that instrument. L
et the State alone in the management of its purely domestic affairs so long as i
t does not appear beyond all question that it has violated the Federal Constitut
ion. This view necessarily results from the principle that the health and safety
of the people of a State are primarily for the State to guard and protect.
I take leave to say that the New York statute, in the particulars here involved,
cannot be held to be in conflict with the Fourteenth Amendment without enlargin
g the scope of the Amendment far beyond its original purpose and without bringin
g under the supervision of this court matters which have been supposed to belong
exclusively to the legislative departments of the several States when exerting
their conceded power to guard the health and safety of their citizens by such re
gulations as they in their wisdom deem best. Health laws of every description co
nstitute, said Chief Justice Marshall, a part of that mass of legislation which
"embraces everything within the territory of a State not surrendered to the Gene
ral Government; all which can be most advantageously exercised by the States the
mselves."
@ 22 U. S. 203. A decision that the New York statute is void under the Fourteent
h Amendment will, in my opinion, involve consequences of a far-reaching and misc
hievous character; for such a decision would seriously cripple the inherent powe
r of the States to care for the lives, health and wellbeing of their citizens. T
hose are matters which can be best controlled by the States.
Page 198 U. S. 74
The preservation of the just powers of the States is quite as vital as the prese
rvation of the powers of the General Government.
When this court had before it the question of the constitutionality of a statute
of Kansas making it a criminal offense for a contractor for public work to perm
it or require his employees to perform labor upon such work in excess of eight h
ours each day, it was contended that the statute was in derogation of the libert
y both of employees and employer. It was further contended that the Kansas statu
te was mischievous in its tendencies. This court, while disposing of the questio
n only as it affected public work, held that the Kansas statute was not void und
er the Fourteenth Amendment. But it took occasion to say what may well be here r
epeated:
"The responsibility therefor rests upon legislators, not upon the courts. No evi
ls arising from such legislation could be more far-reaching than those that migh
t come to our system of government if the judiciary, abandoning the sphere assig
ned to it by the fundamental law, should enter the domain of legislation, and up
on grounds merely of justice or reason or wisdom, annul statutes that had receiv
ed the sanction of the people's representatives. We are reminded by counsel that
it is the solemn duty of the courts in cases before them to guard the constitut
ional rights of the citizen against merely arbitrary power. That is unquestionab
ly true. But it is equally true -- indeed, the public interests imperatively dem
and -- that legislative enactments should be recognized and enforced by the cour
ts as embodying the will of the people unless they are plainly and palpably, bey
ond all question, in violation of the fundamental law of the Constitution."
Atkin v. Kansas, 191 U. S. 207, 191 U. S. 223.
The judgment in my opinion should be affirmed.
MR. JUSTICE HOLMES dissenting.
I regret sincerely that I am unable to agree with the judgment
Page 198 U. S. 75
in this case, and that I think it my duty to express my dissent.
This case is decided upon an economic theory which a large part of the country d
oes not entertain. If it were a question whether I agreed with that theory, I sh
ould 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 dis
agreement has nothing to do with the right of a majority to embody their opinion
s in law. It is settled by various decisions of this court that state constituti
ons and state laws may regulate life in many ways which we, as legislators, migh
t think as injudicious, or, if you like, as tyrannical, as this, and which, equa
lly with this, interfere with the liberty to contract. Sunday laws and usury law
s are ancient examples. A more modern one is the prohibition of lotteries. The l
iberty of the citizen to do as he likes so long as he does not interfere with th
e liberty of others to do the same, which has been a shibboleth for some well kn
own writers, is interfered with by school laws, by the Post Office, by every sta
te or municipal institution which takes his money for purposes thought desirable
, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herber
t Spencer's Social Statics. The other day, we sustained the Massachusetts vaccin
ation law. Jacobson v. Massachusetts, 197 U. S. 11. United States and state stat
utes and decisions cutting down the liberty to contract by way of combination ar
e familiar to this court. Northern Securities Co. v. United States, 193 U. S. 19
7. Two years ago, we upheld the prohibition of sales of stock on margins or for
future delivery in the constitution of California. Otis v. Parker, 187 U. S. 606
. The decision sustaining an eight hour law for miners is still recent. Holden v
. Hardy, 169 U. S. 366. Some of these laws embody convictions or prejudices whic
h judges are likely to share. Some may not. But a constitution is not intended t
o embody a particular economic theory, whether of paternalism and the organic re
lation of the citizen to the State or of laissez faire.
Page 198 U. S. 76
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 n
ot to conclude our judgment upon the question whether statutes embodying them co
nflict with the Constitution of the United States.
General propositions do not decide concrete cases. The decision will depend on a
judgment or intuition more subtle than any articulate major premise. But I thin
k that the proposition just stated, if it is accepted, will carry us far toward
the end. Every opinion tends to become a law. I think that the word liberty in t
he Fourteenth Amendment is perverted when it is held to prevent the natural outc
ome of a dominant opinion, unless it can be said that a rational and fair man ne
cessarily would admit that the statute proposed would infringe fundamental princ
iples as they have been understood by the traditions of our people and our law.
It does not need research to show that no such sweeping condemnation can be pass
ed upon the statute before us. A reasonable man might think it a proper measure
on the score of health. Men whom I certainly could not pronounce unreasonable wo
uld uphold it as a first instalment of a general regulation of the hours of work
. Whether in the latter aspect it would be open to the charge of inequality I th
ink it unnecessary to discuss.
G.R. No. L-22008 November 3, 1924
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
JULIO POMAR, defendant-appellant.
Araneta and Zaragoza for appellant.
Attorney-General Villa-Real for appellee.

JOHNSON, J.:
The only question presented by this appeal is whether or not the provi
sions of sections 13 and 15 of Act No. 3071 are a reasonable and lawful exercise
of the police power of the state.
It appears from the record that on the 26th day of October, 1923, the
prosecuting attorney of the City of Manila presented a complaint in the Court of
First Instance, accusing the defendant of a violation of section 13 in connecti
on with section 15 of Act No. 3071 of the Philippine Legislature. The complaint
alleged:
That on or about the 27th day of August, 1923, and sometime prior ther
eto, in the City of Manila, Philippine Islands, the said accused, being the mana
ger and person in charge of La Flor de la Isabela, a tobacco factory pertaining
to La Campania General de Tabacos de Filipinas, a corporation duly authorized to
transact business in said city, and having, during the year 1923, in his employ
and service as cigar-maker in said factory, a woman by the name of Macaria Faja
rdo, whom he granted vacation leave which began on the 16th day of July, 1923, b
y reason of her pregnancy, did then and there willfully, unlawfully, and felonio
usly fail and refuse to pay to said woman the sum of eighty pesos (P80), Philipp
ine currency, to which she was entitled as her regular wages corresponding to th
irty days before and thirty days after her delivery and confinement which took p
lace on the 12th day of August, 1923, despite and over the demands made by her,
the said Macaria Fajardo, upon said accused, to do so.
To said complaint, the defendant demurred, alleging that the facts the
rein contained did not constitute an offense. The demurrer was overruled, whereu
pon the defendant answered and admitted at the trial all of the allegations cont
ained in the complaint, and contended that the provisions of said Act No. 3071,
upon which the complaint was based were illegal, unconstitutional and void.
Upon a consideration of the facts charged in the complaint and admitte
d by the defendant, the Honorable C. A. Imperial, judge, found the defendant gui
lty of the alleged offense described in the complaint, and sentenced him to pay
a fine of P50, in accordance with the provisions of section 15 of said Act, to s
uffer subsidiary imprisonment in case of insolvency, and to pay the costs.
From that sentence the defendant appealed, and now makes the following
assignments of error: That the court erred in overruling the demurrer; in convi
cting him of the crime charged in the information; and in not declaring section
13 of Act No. 3071, unconstitutional:
Section 13 of Act No. 3071 is as follows:
Every person, firm or corporation owning or managing a factory, shop o
r place of labor of any description shall be obliged to grant to any woman emplo
yed by it as laborer who may be pregnant, thirty days vacation with pay before a
nd another thirty days after confinement: Provided, That the employer shall not
discharge such laborer without just cause, under the penalty of being required t
o pay to her wages equivalent to the total of two months counted from the day of
her discharge.
Section 15 of the same Act is as follows:
Any person, firm or corporation violating any of the provisions of thi
s Act shall be punished by a fine of not less than fifty pesos nor more than two
hundred and fifty, or by imprisonment for not less than ten days nor more than
six months, or both, in the discretion of the court.
In the case of firms or corporations, the presidents, directors or man
agers thereof or, in their default, the persons acting in their stead, shall be
criminally responsible for each violation of the provisions of this Act.
Said section 13 was enacted by the Legislature of the Philippine Islan
ds in the exercise of its supposed police power, with the praiseworthy purpose o
f safeguarding the health of pregnant women laborers in "factory, shop or place
of labor of any description," and of insuring to them, to a certain extent, reas
onable support for one month before and one month after their delivery. The ques
tion presented for decision by the appeal is whether said Act has been adopted i
n the reasonable and lawful exercise of the police power of the state.
In determining whether a particular law promulgated under the police p
ower of the state is, in fact, within said power, it becomes necessary first, to
determine what that power is, its limits and scope. Literally hundreds of decis
ions have been promulgated in which definitions of the police power have been at
tempted. An examination of all of said decisions will show that the definitions
are generally limited to particular cases and examples, which are as varied as t
hey are numerous.
By reason of the constant growth of public opinion in a developing civ
ilization, the term "police power" has never been, and we do not believe can be,
clearly and definitely defined and circumscribed. One hundred years ago, for ex
ample, it is doubtful whether the most eminent jurist, or court, or legislature
would have for a moment thought that, by any possibility, a law providing for th
e destruction of a building in which alcoholic liquors were sold, was within a r
easonable and lawful exercise of the police power. (Mugler vs. Kansas, 123 U. S.
, 623.) The development of civilization, the rapidly increasing population, the
growth of public opinion, with a desire on the part of the masses and of the gov
ernment to look after and care for the interests of the individuals of the state
, have brought within the police power of the state many questions for regulatio
n which formerly were not so considered. In a republican form of government publ
ic sentiment wields a tremendous influence upon what the state may or may not do
, for the protection of the health and public morals of the people. Yet, neither
public sentiment, nor a desire to ameliorate the public morals of the people of
the state will justify the promulgation of a law which contravenes the express
provisions of the fundamental law of the people the constitutional of the state.
A definition of the police power of the state must depend upon the par
ticular law and the particular facts to which it is to be applied. The many defi
nitions which have been given by the highest courts may be examined, however, fo
r the purpose of giving us a compass or guide to assist us in arriving at a corr
ect conclusion in the particular case before us. Sir William Blackstone, one of
the greatest expounders of the common law, defines the police power as "the due
regulation and domestic order of the kingdom, whereby the inhabitants of a state
, like members of a well-governed family, are bound to conform their general beh
avior to the rules of propriety, good neighborhood, and good manners, and to be
decent, industrious, and inoffensive in their respective stations." (4 Blackston
e's Commentaries, 162.)
Mr. Jeremy Bentham, in his General View of Public Offenses, gives us t
he following definition: "Police is in general a system of precaution, either fo
r the prevention of crimes or of calamities. Its business may be distributed int
o eight distinct branches: (1) Police for the prevention of offenses; (2) police
for the prevention of calamities; (3) police for the prevention of endemic dise
ased; (4) police of charity; (5) police of interior communications; (6) police o
f public amusements; (7) police for recent intelligence; (8) police for registra
tion."
Mr. Justice Cooley, perhaps the greatest expounder of the American Con
stitution, says: "The police power is the power vested in the legislature by the
constitution to make, ordain, and establish all manner of wholesome and reasona
ble laws, statutes, and ordinances, either with penalties or without, not repugn
ant to the constitution, as they shall judge to be for the good and welfare of t
he commonwealth, and of the subject of the same. . . ." (Cooley's Constitutional
Limitations, p. 830.)
In the case of Commonwealth of Massachusetts vs. Alger (7 Cushing, 53)
, we find a very comprehensive definition of the police power of the state. In t
hat case it appears that the colony of Massachusetts in 1647 adopted an Act to p
reserve the harbor of Boston and to prevent encroachments therein. The defendant
unlawfully erected, built, and established in said harbor, and extended beyond
said lines and into and over the tide water of the Commonwealth a certain supers
tructure, obstruction and encumbrance. Said Act provided a penalty for its viola
tion of a fine of not less than $1,000 nor more than $5,000 for every offense, a
nd for the destruction of said buildings, or structures, or obstructions as a pu
blic nuisance. Alger was arrested and placed on trial for violation of said Act.
His defense was that the Act of 1647 was illegal and void, because if permitted
the destruction of private property without compensation. Mr. Justice Shaw, spe
aking for the court in that said, said: "We think it is a settled principle, gro
wing out of the nature of well-ordered civil society, that every holder of prope
rty, however absolute and unqualified may be his title, holds it under the impli
ed liability that his use of it may be so regulated, that it shall not be injuri
ous to the equal environment of others having an equal right to the enjoyment of
their property nor injurious to the rights of the community. All property in th
is commonwealth, as well that in the interior as that bordering on tide waters,
is derived directly or indirectly from the government and held subject to those
general regulations, which are necessary to the common good and general welfare.
 Rights of property, like all other social and conventional rights, are subject
to such reasonable limitations in their enjoyment, as shall prevent them from be
ing injurious, and to such reasonable restraints and regulations established by
law, as the legislature, under the governing and controlling power vested in the
m by the constitution, may think necessary and expedient." Mr. Justice Shaw furt
her adds: ". . . The power we allude to is rather the police power, the power ve
sted in the legislature by the constitution, to make, ordain and establish all m
anner of wholesome and reasonable laws, statutes and ordinances, either with pen
alties or without, not repugnant to the constitution, as they shall judge to be
for the good and welfare of the commonwealth, and of the subjects of the same."
This court has, in the case of Case vs. Board of Health and Heiser (24
Phil., 250), in discussing the police power of the state, had occasion to say:
". . . It is a well settled principle, growing out of the nature of well-ordered
and civilized society, that every holder of property, however absolute and unqu
alified may be his title, holds it under the implied liability that his use of i
t shall not be injurious to the equal enjoyment of others having an equal right
to the enjoyment of their property, nor injurious to the rights of the community
. All property in the state is held subject to its general regulations, which ar
e necessary to the common good and general welfare. Rights of property, like all
other social and conventional rights, are subject to such reasonable limitation
s in their enjoyment as shall prevent them from being injurious, and to such rea
sonable restraints and regulations, established by law, as the legislature, unde
r the governing and controlling power vested in them by the constitution, may th
ink necessary and expedient. The state, under the police power is possessed with
plenary power to deal with all matters relating to the general health, morals,
and safety of the people, so long as it does not contravene any positive inhibit
ion of the organic law and providing that such power is not exercised in such a
manner as to justify the interference of the courts to prevent positive wrong an
d oppression."
Many other definitions have been given not only by the Supreme Court o
f the United States but by the Supreme Court of every state of the Union. The fo
regoing definitions, however, cover the general field of all of the definitions,
found in jurisprudence. From all of the definitions we conclude that it is much
easier to perceive and realize the existence and sources of the police power th
an to exactly mark its boundaries, or prescribe limits to its exercise by the le
gislative department of the government.
The most recent definition which has been called to our attention is t
hat found in the case of Adkins vs. Children's Hospital of the District of Colum
bia (261 U. S., 525). In that case the controversy arose in this way: A children
's hospital employed a number of women at various rates of wages, which were ent
irely satisfactory to both the hospital and the employees. A hotel company emplo
yed a woman as elevator operator at P35 per month and two meals a day under heal
thy and satisfactory conditions, and she did not risk to lose her position as sh
e could not earn so much anywhere else. Her wages were less than the minimum fix
ed by a board created under a law for the purpose of fixing a minimum wage for w
omen and children, with a penalty providing a punishment for a failure or refusa
l to pay the minimum wage fixed. The wage paid by the hotel company of P35 per m
onth and two meals a day was less than the minimum wage fixed by said board. By
reason of the order of said board, the hotel company, was about to discharge her
, as it was unwilling to pay her more and could not give her employment at that
salary without risking the penalty of a fine and imprisonment under the law. She
brought action to enjoin the hotel company from discharging her upon the ground
that the enforcement of the "Minimum Wage Act" would deprive her of her employm
ent and wages without due process of law, and that she could not get as good a p
osition anywhere else. The constitutionality of the Act was squarely presented t
o the Supreme Court of the United States for decision.
 The Supreme Court of the United States held that said Act was void on
the ground that the right to contract about one's own affairs was a part of the
liberty of the individual under the constitution, and that while there was no su
ch thing as absolute freedom of contract, and it was necessary subject to a grea
t variety of restraints, yet none of the exceptional circumstances, which at tim
es justify a limitation upon one's right to contract for his own services, appli
ed in the particular case.
In the course of the decision in that case (Adkins vs. Children's Hosp
ital of the District of Columbia, 261 U. S., 525), Mr. Justice Sutherland, after
a statement of the fact and making reference to the particular law, said:
The statute now under consideration is attacked upon the ground that i
t authorizes an unconstitutional interference with the freedom of contract inclu
ding within the guarantees of the due process clause of the 5th Amendment. That
the right to contract about one's affairs is a part of the liberty of the indivi
dual protected by this clause is settled by the decision of this court, and is n
o longer open to question. Within this liberty are contracts of employment of la
bor. In making such contracts, generally speaking, the parties have an equal rig
ht to obtain from each other the best terms they can as the result of private ba
rgaining. (Allgeyer vs. Louisiana, 165 U. S., 578; 591; Adair vs. United States,
208 U. S., 161; Muller vs. Oregon, 208 U. S., 412, 421.)
x x x x x x x x x
The law takes account of the necessities of only one party to the cont
ract. It ignores the necessities of the employer by compelling him to pay not le
ss than a certain sum, not only whether the employee is capable of earning it, b
ut irrespective of the ability of his business to sustain the burden, generously
leaving him, of course, the privilege of abandoning his business as an alternat
ive for going on at a loss. Within the limits of the minimum sum, he is preclude
d, under penalty of fine and imprisonment, from adjusting compensation to the di
ffering merits of his employees. It compels him to pay at least the sum fixed in
any event, because the employee needs it, but requires no service of equivalent
value from the employee. It (the law) therefore undertakes to solve but one-hal
f of the problem. The other half is the establishment of a corresponding standar
d of efficiency; and this forms no part of the policy of the legislation, althou
gh in practice the former half without the latter must lead to ultimate failure,
in accordance with the inexorable law that no one can continue indefinitely to
take out more than he puts in without ultimately exhausting the supply. The law
. . . takes no account of periods of distress and business depression, or crippl
ing losses, which may leave the employer himself without adequate means of livel
ihood. To the extent that the sum fixed exceeds the fair value of the services r
endered, it amounts to a compulsory exaction from the employer for the support o
f a partially indigent person, for whose condition there rests upon him no pecul
iar responsibility, and therefore, in effect, arbitrarily shifts to his shoulder
s a burden which, if it belongs to anybody, belongs to society as a whole.
The failure of this state which, perhaps more than any other, puts upo
n it the stamp of invalidity is that it exacts from the employer an arbitrary pa
yment for a purpose and upon a basis having no casual connection with his busine
ss, or the contract, or the work the employee engages to do. The declared basis,
as already pointed out, is not the value of the service rendered, but the extra
neous circumstances that the employee needs to get a prescribed sum of money to
insure her subsistence, health and morals. . . . The necessities of the employee
are alone considered, and these arise outside of the employment, are the same w
hen there is no employment, and as great in one occupation as in another. . . .
In principle, there can be no difference between the case of selling labor and t
he case of selling goods. If one goes to the butcher, the baker, or grocer to bu
y food, he is morally entitled to obtain the worth of his money, but he is not e
ntitle to more. If what he gets is worth what he pays, he is not justified in de
manding more simply because he needs more; and the shopkeeper, having dealt fair
ly and honestly in that transaction, is not concerned in any peculiar sense with
the question of his customer's necessities. Should a statute undertake to vest
in a commission power to determine the quantity of food necessary for individual
support, and require the shopkeeper, if he sell to the individual at all, to fu
rnish that quantity at not more than a fixed maximum, it would undoubtedly fall
before the constitutional test. The fallacy of any argument in support of the va
lidity of such a statute would be quickly exposed. The argument in support of th
at now being considered is equally fallacious, though the weakness of it may not
be so plain. . . .
It has been said that the particular statute before us is required in
the interest of social justice for whose end freedom of contract may lawfully be
subjected to restraint. The liberty of the individual to do as he pleases, even
in innocent matters, is not absolute. That liberty must frequently yield to the
common good, and the line beyond which the power of interference may not be pre
ssed is neither definite nor unalterable, may be made to move, within limits not
well defined, with changing needs and circumstances.
The late Mr. Justice Harlan, in the case of Adair vs. United States (2
08 U. S., 161, 174), said that the right of a person to sell his labor upon such
terms as he deems proper is, in its essence, the same as the right of the purch
aser of labor to prescribe the conditions upon which he will accept such labor f
rom the person offering to sell. In all such particulars the employer and the em
ployee have equality of right, and any legislation that disturbs that equality i
s an arbitrary interference with the liberty of contract, which no government ca
n legally justify in a free land, under a constitution which provides that no pe
rson shall be deprived of his liberty without due process of law.
Mr. Justice Pitney, in the case of Coppage vs. Kansas (235 U. S., 1, 1
4), speaking for the Supreme Court of the United States, said: ". . . Included i
n the right of personal liberty and the right of private property partaking of t
he nature of each is the right to make contracts for the acquisition of property
. Chief among such contracts is that of personal employment, by which labor and
other services are exchange for money or other forms of property. If this right
be struck down or arbitrarily interfered with, there is a substantial impairment
of liberty in the long established constitutional sense. The right is as essent
ial to the laborer as to the capitalist, to the poor as to the rich; for the vas
t majority of persons have no other honest way to begin to acquire property, sav
e by working for money."
The right to liberty includes the right to enter into contracts and to
terminate contracts. In the case of Gillespie vs. People (118 Ill., 176, 183-18
5) it was held that a statute making it unlawful to discharge an employee becaus
e of his connection with any lawful labor organization, and providing a penalty
therefor, is void, since the right to terminate a contract, subject to liability
to respond in a civil action for an unwarranted termination, is within the prot
ection of the state and Federal constitutions which guarantee that no person sha
ll be deprived of life, liberty or property without due process of law. The cour
t said in part: ". . . One citizen cannot be compelled to give employment to ano
ther citizen, nor can anyone be compelled to be employed against his will. The A
ct of 1893, now under consideration, deprives the employer of the right to termi
nate his contract with his employee. The right to terminate such a contract is g
uaranteed by the organic law of the state. The legislature is forbidden to depri
ve the employer or employee of the exercise of that right. The legislature has n
o authority to pronounce the performance of an innocent act criminal when the pu
blic health, safety, comfort or welfare is not interfered with. The statute in q
uestion says that, if a man exercises his constitutional right to terminate a co
ntract with his employee, he shall, without a hearing, be punished as for the co
mmission of a crime.
x x x x x x x x x
Liberty includes not only the right to labor, but to refuse to labor,
and, consequently, the right to contract to labor or for labor, and to terminate
such contracts, and to refuse to make such contracts. The legislature cannot pr
event persons, who are sui juris, from laboring, or from making such contracts a
s they may see fit to make relative to their own lawful labor; nor has it any po
wer by penal laws to prevent any person, with or without cause, from refusing to
employ another or to terminate a contract with him, subject only to the liabili
ty to respond in a civil action for an unwarranted refusal to do that which has
been agreed upon. Hence, we are of the opinion that this Act contravenes those p
rovisions of the state and Federal constitutions, which guarantee that no person
shall be deprived of life, liberty or property without due process of law.
The statute in question is exactly analogous to the "Minimum Wage Act"
referred to above. In section 13 it will be seen that no person, firm, or corpo
ration owning or managing a factory shop, or place of labor of any description,
can make a contract with a woman without incurring the obligation, whatever the
contract of employment might be, unless he also promise to pay to such woman emp
loyed as a laborer, who may become pregnant, her wages for thirty days before an
d thirty days after confinement. In other words, said section creates a term or
condition in every contract made by every person, firm, or corporation with any
woman who may, during the course of her employment, become pregnant, and a failu
re to include in said contract the terms fixed to a fine and imprisonment. Clear
ly, therefore, the law has deprived, every person, firm, or corporation owning o
r managing a factory, shop or place of labor of any description within the Phili
ppine Islands, of his right to enter into contracts of employment upon such term
s as he and the employee may agree upon. The law creates a term in every such co
ntract, without the consent of the parties. Such persons are, therefore, deprive
d of their liberty to contract. The constitution of the Philippine Islands guara
ntees to every citizen his liberty and one of his liberties is the liberty to co
ntract.
It is believed and confidently asserted that no case can be found, in
civilized society and well-organized governments, where individuals have been de
prived of their property, under the police power of the state, without compensat
ion, except in cases where the property in question was used for the purpose of
violating some legally adopted, or constitutes a nuisance. Among such cases may
be mentioned: Apparatus used in counterfeiting the money of the state; firearms
illegally possessed; opium possessed in violation of law; apparatus used for gam
bling in violation of law; buildings and property used for the purpose of violat
ing laws prohibiting the manufacture and sale of intoxicating liquors; and all c
ases in which the property itself has become a nuisance and dangerous and detrim
ental to the public health, morals and general welfare of the state. In all of s
uch cases, and in many more which might be cited, the destruction of the propert
y is permitted in the exercise of the police power of the state. But it must fir
st be established that such property was used as the instrument for the violatio
n of a valid existing law. (Mugler vs. Kansas, 123 U. S., 623; Slaughter-House C
ases, 16 Wall., [U. S.], 36; Butchers' Union, etc., Co. vs. Crescent City, etc.,
Co., 111 U. S., 746 John Stuart Mill "On Liberty," 28, 29.)
Without further attempting to define what are the peculiar subjects or
limits of the police power, it may safely be affirmed, that every law for the r
estraint and punishment of crimes, for the preservation of the public peace, hea
lth, and morals, must come within this category. But the state, when providing b
y legislation for the protection of the public health, the public morals, or the
public safety, is subject to and is controlled by the paramount authority of th
e constitution of the state, and will not be permitted to violate rights secured
 or guaranteed by that instrument or interfere with the execution of the powers
and rights guaranteed to the people under their law the constitution. (Mugler vs
. Kansas, 123 U. S., 623.)
The police power of the state is a growing and expanding power. As civ
ilization develops and public conscience becomes awakened, the police power may
be extended, as has been demonstrated in the growth of public sentiment with ref
erence to the manufacture and sale of intoxicating liquors. But that power canno
t grow faster than the fundamental law of the state, nor transcend or violate th
e express inhibition of the people's law the constitution. If the people desire
to have the police power extended and applied to conditions and things prohibite
d by the organic law, they must first amend that law.1awphil.net
It will also be noted from an examination of said section 13, that it
takes no account of contracts for the employment of women by the day nor by the
piece. The law is equally applicable to each case. It will hardly be contended t
hat the person, firm or corporation owning or managing a factory, shop or place
of labor, who employs women by the day or by the piece, could be compelled under
the law to pay for sixty days during which no services were rendered.
It has been decided in a long line of decisions of the Supreme Court o
f the United States, that the right to contract about one's affairs is a part of
the liberty of the individual, protected by the "due process of law" clause of
the constitution. (Allgeyer vs. Louisiana, 165 U. S., 578, 591; New York Life In
s. Co. vs. Dodge, 246 U. S., 357, 373, 374; Coppage vs. Kansas, 236 U. S., 1, 10
, 14; Adair vs. United States, 208 U. S., 161; Lochner vs. New York, 198 U. S.;
45, 49; Muller vs. Oregon, 208 U. S., 412, 421.)
The rule in this jurisdiction is, that the contracting parties may est
ablish any agreements, terms, and conditions they may deem advisable, provided t
hey are not contrary to law, morals or public policy. (Art. 1255, Civil Code.)
For all of the foregoing reasons, we are fully persuaded, under the fa
cts and the law, that the provisions of section 13, of Act No. 3071 of the Phili
ppine Legislature, are unconstitutional and void, in that they violate and are c
ontrary to the provisions of the first paragraph of section 3 of the Act of Cong
ress of the United States of August 29, 1916. (Vol. 12, Public Laws, p. 238.)
Therefore, the sentence of the lower court is hereby revoked, the comp
laint is hereby dismissed, and the defendant is hereby discharged from the custo
dy of the law, with costs de oficio. So ordered.
Street, Malcolm, Avanceña, Villamor, Ostrand and Romualdez, JJ., concur.
G.R. No. L-44143 August 31, 1988
THE PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
EUSEBIO NAZARIO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Teofilo Ragodon for accused-appellant.

SARMIENTO, J.:
The petitioner was charged with violation of certain municipal ordinances of the
municipal council of Pagbilao, in Quezon province. By way of confession and avo
idance, the petitioner would admit having committed the acts charged but would c
laim that the ordinances are unconstitutional, or, assuming their constitutional
ity, that they do not apply to him in any event.
The facts are not disputed:
This defendant is charged of the crime of Violation of Municipal Ordinance in an
information filed by the provincial Fiscal, dated October 9, 1968, as follows:
That in the years 1964, 1965 and 1966, in the Municipality of Pagbilao, Province
of Quezon, Philippines, and within the jurisdiction of this Honorable Court, th
e above-named accused, being then the owner and operator of a fishpond situated
in the barrio of Pinagbayanan, of said municipality, did then and there willfull
y, unlawfully and feloniously refuse and fail to pay the municipal taxes in the
total amount of THREE HUNDRED SIXTY TWO PESOS AND SIXTY TWO CENTAVOS (P362.62),
required of him as fishpond operator as provided for under Ordinance No. 4, seri
es of 1955, as amended, inspite of repeated demands made upon him by the Municip
al Treasurer of Pagbilao, Quezon, to pay the same.
Contrary to law.
For the prosecution the following witnesses testified in substance as follows;
MIGUEL FRANCIA, 39 years of age, married, farmer and resident of Lopez, Quezon
In 1962 to 1967, I resided at Pinagbayanan, Pagbilao, Quezon. I know the accused
as I worked in his fishpond in 1962 to 1964. The fishpond of Nazario is at Pina
gbayanan, Pagbilao, Quezon. I worked in the clearing of the fishpond, the constr
uction of the dikes and the catching of fish.
On cross-examination, this witness declared:
I worked with the accused up to March 1964.
NICOLAS MACAROLAY, 65 years of age, married, copra maker and resident of Pinagba
yanan, Pagbilao, Quezon
I resided at Pinagbayanan, Pagbilao, Quezon since 1959 up to the present. I know
the accused since 1959 when he opened a fishpond at Pinagbayanan, Pagbilao, Que
zon. He still operates the fishpond up to the present and I know this fact as I
am the barrio captain of Pinagbayanan.
On cross-examination, this witness declared:
I came to know the accused when he first operated his fishpond since 1959.
On re-direct examination, this witness declared:
I was present during the catching of fish in 1967 and the accused was there.
On re-cross examination, this witness declared:
I do not remember the month in 1962 when the accused caught fish.
RODOLFO R. ALVAREZ, 45 years old, municipal treasurer of Pagbilao, Quezon, marri
ed
As Municipal Treasurer I am in charge of tax collection. I know the accused even
before I was Municipal Treasurer of Pagbilao. I have written the accused a lett
er asking him to pay his taxes (Exhibit B). Said letter was received by the accu
sed as per registry return receipt, Exhibit B-1. The letter demanded for payment
of P362.00, more or less, by way of taxes which he did not pay up to the presen
t. The former Treasurer, Ceferino Caparros, also wrote a letter of demand to the
accused (Exhibit C). On June 28, 1967, I sent a letter to the Fishery Commissio
n (Exhibit D), requesting information if accused paid taxes with that office. Th
e Commission sent me a certificate (Exhibits D-1, D-2 & D-3). The accused had a
fishpond lease agreement. The taxes unpaid were for the years 1964, 1965 and 196
6.
On cross-examination, this witness declared:
I have demanded the taxes for 38.10 hectares.
On question of the court, this witness declared:
What I was collecting from the accused is the fee on fishpond operation, not ren
tal.
The prosecution presented as part of their evidence Exhibits A, A-1, A-2, B, B-2
, C, D, D-1, D-2, D-3, E, F, F-1 and the same were admitted by the court, except
Exhibits D, D-1, D-2 and D-3 which were not admitted for being immaterial.
For the defense the accused EUSEBIO NAZARIO, 48 years of age, married, owner and
general manager of the ZIP Manufacturing Enterprises and resident of 4801 Old S
ta. Mesa, Sampaloc, Manila, declared in substance as follows:
I have lived in Sta. Mesa, Manila, since 1949. I buy my Residence Certificates a
t Manila or at San Juan. In 1964, 1965 and 1966, I was living in Manila and my b
usiness is in Manila and my family lives at Manila. I never resided at Pagbilao,
Quezon. I do not own a house at Pagbilao. I am a lessee of a fishpond located a
t Pagbilao, Quezon, and I have a lease agreement to that effect with the Philipp
ine Fisheries Commission marked as Exhibit 1. In 1964, 1965 and 1966, the contra
ct of lease, Exhibit 1, was still existing and enforceable. The Ordinances Nos.
4, 15 and 12, series of 1955, 1965 and 1966, were translated into English by the
Institute of National Language to better understand the ordinances. There were
exchange of letters between me and the Municipal Treasurer of Pagbilao regarding
the payment of the taxes on my leased fishpond situated at Pagbilao. There was
a letter of demand for the payment of the taxes by the treasurer (Exhibit 3) whi
ch I received by mail at my residence at Manila. I answered the letter of demand
, Exhibit 3, with Exhibit 3-A. I requested an inspection of my fishpond to deter
mine its condition as it was not then in operation. The Municipal Treasurer Alva
rez went there once in 1967 and he found that it was destroyed by the typhoon an
d there were pictures taken marked as Exhibits 4, 4-A, 4-B and 4C. I received an
other letter of demand, Exhibit 5, and I answered the same (Exhibit 5-A). I copi
ed my reference quoted in Exhibit 5-A from Administrative Order No. 6, Exhibit 6
. I received another letter of demand from Tomas Ornedo, Acting Municipal Treasu
rer of Pagbilao, dated February 16, 1966, Exhibit 7, and I answered the same wit
h the letter marked as Exhibit 7-A, dated February 26, 1966. I received another
letter of demand from Treasurer Alvarez of Pagbilao, Exhibit 8, and I answered t
he same (Exhibit 8-A). In 1964, I went to Treasurer Caparros to ask for an appli
cation for license tax and he said none and he told me just to pay my taxes. I d
id not pay because up to now I do not know whether I am covered by the Ordinance
or not. The letters of demand asked me to pay different amounts for taxes for t
he fishpond. Because under Sec. 2309 of the Revised Administrative Code, municip
al taxes lapse if not paid and they are collecting on a lapsed ordinance. Becaus
e under the Tax Code, fishermen are exempted from percentage tax and privilege t
ax. There is no law empowering the municipality to pass ordinance taxing fishpon
d operators.
The defense presented as part of their evidence Exhibits 1, 2, 3, 3-A, 4, 4-B, 4
-B, 4-C, 5, 5-A, 6, 6-A, 6-B, 6-C, 7, 7-A, 8 and 8-A and the same were admitted
by the court.
From their evidence the prosecution would want to show to the court that the acc
used, as lessee or operator of a fishpond in the municipality of Pagbilao, refus
ed, and still refuses, to pay the municipal taxes for the years 1964, 1965 and 1
966, in violation of Municipal Ordinance No. 4, series of 1955, as amended by Mu
nicipal Ordinance No. 15, series of 1965, and finally amended by Municipal Ordin
ance No. 12, series of 1966.
On the other hand, the accused, by his evidence, tends to show to the court that
the taxes sought to be collected have already lapsed and that there is no law e
mpowering municipalities to pass ordinances taxing fishpond operators. The defen
se, by their evidence, tried to show further that, as lessee of a forest land to
be converted into a fishpond, he is not covered by said municipal ordinances; a
nd finally that the accused should not be taxed as fishpond operator because the
re is no fishpond yet being operated by him, considering that the supposed fishp
ond was under construction during the period covered by the taxes sought to be c
ollected.
Finally, the defendant claims that the ordinance in question is ultra vires as i
t is outside of the power of the municipal council of Pagbilao, Quezon, to enact
; and that the defendant claims that the ordinance in question is ambiguous and
uncertain.
There is no question from the evidences presented that the accused is a lessee o
f a parcel of forest land, with an area of 27.1998 hectares, for fishpond purpos
es, under Fishpond Lease Agreement No. 1066, entered into by the accused and the
government, through the Secretary of Agriculture and Natural Resources on Augus
t 21, 1959.
There is no question from the evidences presented that the 27.1998 hectares of l
and leased by the defendant from the government for fishpond purposes was actual
ly converted into fishpond and used as such, and therefore defendant is an opera
tor of a fishpond within the purview of the ordinance in question. 1
The trial Court 2 returned a verdict of guilty and disposed as follows:
VIEWED IN THE LIGHT OF ALL THE FOREGOING, the Court finds the accused guilty bey
ond reasonable doubt of the crime of violation of Municipal Ordinance No. 4, ser
ies of 1955, as amended by Ordinance No. 15, series of 1965 and further amended
by Ordinance No. 12, series of 1966, of the Municipal Council of Pagbilao, Quezo
n; and hereby sentences him to pay a fine of P50.00, with subsidiary imprisonmen
t in case of insolvency at the rate of P8.00 a day, and to pay the costs of this
proceeding.
SO ORDERED. 3
In this appeal, certified to this Court by the Court of Appeals, the petitioner
alleges that:
I.
THE LOWER COURT ERRED IN NOT DECLARING THAT ORDINANCE NO. 4, SERIES OF 1955, AS
AMENDED BY ORDINANCE NO. 15, SERIES OF 1965, AND AS FURTHER AMENDED BY ORDINANCE
NO. 12, SERIES OF 1966, OF THE MUNICIPALITY OF PAGBILAO, QUEZON, IS NULL AND VO
ID FOR BEING AMBIGUOUS AND UNCERTAIN.
II.
THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN QUESTION, AS AMENDED,
IS UNCONSTITUTIONAL FOR BEING EX POST FACTO.
III.
THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN QUESTION COVERS ONLY
OWNERS OR OVERSEER OF FISHPONDS OF PRIVATE OWNERSHIP AND NOT TO LESSEES OF PUBLI
C LANDS.
IV.
THE LOWER COURT ERRED IN NOT FINDING THAT THE QUESTIONED ORDINANCE, EVEN IF VALI
D, CANNOT BE ENFORCED BEYOND THE TERRITORIAL LIMITS OF PAGBILAO AND DOES NOT COV
ER NON-
RESIDENTS. 4
The ordinances in question are Ordinance No. 4, series of 1955, Ordinance No. 15
, series of 1965, and Ordinance No. 12, series of 1966, of the Municipal Council
of Pagbilao. Insofar as pertinent to this appeal, the salient portions thereof
are hereinbelow quoted:
Section 1. Any owner or manager of fishponds in places within the territorial li
mits of Pagbilao, Quezon, shall pay a municipal tax in the amount of P3.00 per h
ectare of fishpond on part thereof per annum. 5
xxx xxx xxx
Sec. l (a). For the convenience of those who have or owners or managers of fishp
onds within the territorial limits of this municipality, the date of payment of
municipal tax relative thereto, shall begin after the lapse of three (3) years s
tarting from the date said fishpond is approved by the Bureau of Fisheries. 6
xxx xxx xxx
Section 1. Any owner or manager of fishponds in places within the territorial li
mits of Pagbilao shall pay a municipal tax in the amount of P3.00 per hectare or
any fraction thereof per annum beginning and taking effect from the year 1964,
if the fishpond started operating before the year 1964. 7
The first objection refers to the ordinances being allegedly "ambiguous and unce
rtain." 8 The petitioner contends that being a mere lessee of the fishpond, he i
s not covered since the said ordinances speak of "owner or manager." He likewise
maintains that they are vague insofar as they reckon the date of payment: Where
as Ordinance No. 4 provides that parties shall commence payment "after the lapse
of three (3) years starting from the date said fishpond is approved by the Bure
au of Fisheries." 9 Ordinance No. 12 states that liability for the tax accrues "
beginning and taking effect from the year 1964 if the fishpond started operating
before the year 1964." 10
As a rule, a statute or act may be said to be vague when it lacks comprehensible
standards that men "of common intelligence must necessarily guess at its meanin
g and differ as to its application." 11 It is repugnant to the Constitution in t
wo respects: (1) it violates due process for failure to accord persons, especial
ly the parties targetted by it, fair notice of the conduct to avoid; and (2) it
leaves law enforcers unbridled discretion in carrying out its provisions and bec
omes an arbitrary flexing of the Government muscle.
But the act must be utterly vague on its face, that is to say, it cannot be clar
ified by either a saving clause or by construction. Thus, in Coates v. City of C
incinnati, 12 the U.S. Supreme Court struck down an ordinance that had made it i
llegal for "three or more persons to assemble on any sidewalk and there conduct
themselves in a manner annoying to persons passing by." 13 Clearly, the ordinanc
e imposed no standard at all "because one may never know in advance what 'annoys
some people but does not annoy others.' " 14
Coates highlights what has been referred to as a "perfectly vague" 15 act whose
obscurity is evident on its face. It is to be distinguished, however, from legis
lation couched in imprecise language but which nonetheless specifies a standard
though defectively phrased in which case, it may be "saved" by proper constructi
on.
It must further be distinguished from statutes that are apparently ambiguous yet
fairly applicable to certain types of activities. In that event, such statutes
may not be challenged whenever directed against such activities. In Parker v. Le
vy, 16 a prosecution originally under the U.S. Uniform Code of Military Justice
(prohibiting, specifically, "conduct unbecoming an officer and gentleman"), the
defendant, an army officer who had urged his men not to go to Vietnam and called
the Special Forces trained to fight there thieves and murderers, was not allowe
d to invoke the void for vagueness doctrine on the premise that accepted militar
y interpretation and practice had provided enough standards, and consequently, a
fair notice that his conduct was impermissible.
It is interesting that in Gonzales v. Commission on Elections, 17 a divided Cour
t sustained an act of Congress (Republic Act No. 4880 penalizing "the too early
nomination of candidates" 18 limiting the election campaign period, and prohibit
ing "partisan political activities"), amid challenges of vagueness and overbread
th on the ground that the law had included an "enumeration of the acts deemed in
cluded in the terms 'election campaign' or 'partisan political activity" 19 that
would supply the standards. "As thus limited, the objection that may be raised
as to vagueness has been minimized, if not totally set at rest." 20 In his opini
on, however, Justice Sanchez would stress that the conduct sought to be prohibit
ed "is not clearly defined at all." 21 "As worded in R.A 4880, prohibited discus
sion could cover the entire spectrum of expression relating to candidates and po
litical parties." 22 He was unimpressed with the "restrictions" Fernando's opini
on had relied on: " 'Simple expressions of opinions and thoughts concerning the
election' and expression of 'views on current political problems or issues' leav
e the reader conjecture, to guesswork, upon the extent of protection offered, be
it as to the nature of the utterance ('simple expressions of opinion and though
ts') or the subject of the utterance ('current political problems or issues')."
23
The Court likewise had occasion to apply the "balancing-of-interests" test, 24 i
nsofar as the statute's ban on early nomination of candidates was concerned: "Th
e rational connection between the prohibition of Section 50-A and its object, th
e indirect and modest scope of its restriction on the rights of speech and assem
bly, and the embracing public interest which Congress has found in the moderatio
n of partisan political activity, lead us to the conclusion that the statute may
stand consistently with and does not offend the Constitution." 25 In that case,
Castro would have the balance achieved in favor of State authority at the "expe
nse" of individual liberties.
In the United States, which had ample impact on Castro's separate opinion, the b
alancing test finds a close kin, referred to as the "less restrictive alternativ
e " 26 doctrine, under which the court searches for alternatives available to th
e Government outside of statutory limits, or for "less drastic means" 27 open to
the State, that would render the statute unnecessary. In United States v. Robel
, 28 legislation was assailed, banning members of the (American) Communist Party
from working in any defense facility. The U.S. Supreme Court, in nullifying the
statute, held that it impaired the right of association, and that in any case,
a screening process was available to the State that would have enabled it to Ide
ntify dangerous elements holding defense positions. 29 In that event, the balanc
e would have been struck in favor of individual liberties.
It should be noted that it is in free expression cases that the result is usuall
y close. It is said, however, that the choice of the courts is usually narrowed
where the controversy involves say, economic rights, 30 or as in the Levy case,
military affairs, in which less precision in analysis is required and in which t
he competence of the legislature is presumed.
In no way may the ordinances at bar be said to be tainted with the vice of vague
ness. It is unmistakable from their very provisions that the appellant falls wit
hin its coverage. As the actual operator of the fishponds, he comes within the t
erm " manager." He does not deny the fact that he financed the construction of t
he fishponds, introduced fish fries into the fishponds, and had employed laborer
s to maintain them. 31 While it appears that it is the National Government which
owns them, 32 the Government never shared in the profits they had generated. It
is therefore only logical that he shoulders the burden of tax under the said or
dinances.
We agree with the trial court that the ordinances are in the character of revenu
e measures 33 designed to assist the coffers of the municipality of Pagbilao. An
d obviously, it cannot be the owner, the Government, on whom liability should at
tach, for one thing, upon the ancient principle that the Government is immune fr
om taxes and for another, since it is not the Government that had been making mo
ney from the venture.
Suffice it to say that as the actual operator of the fishponds in question, and
as the recipient of profits brought about by the business, the appellant is clea
rly liable for the municipal taxes in question. He cannot say that he did not ha
ve a fair notice of such a liability to make such ordinances vague.
Neither are the said ordinances vague as to dates of payment. There is no merit
to the claim that "the imposition of tax has to depend upon an uncertain date ye
t to be determined (three years after the 'approval of the fishpond' by the Bure
au of Fisheries, and upon an uncertain event (if the fishpond started operating
before 1964), also to be determined by an uncertain individual or individuals."
34 Ordinance No. 15, in making the tax payable "after the lapse of three (3) yea
rs starting from the date said fishpond is approved by the Bureau of Fisheries,"
35 is unequivocal about the date of payment, and its amendment by Ordinance No.
12, reckoning liability thereunder "beginning and taking effect from the year 1
964 if the fishpond started operating before the year 1964 ," 36 does not give r
ise to any ambiguity. In either case, the dates of payment have been definitely
established. The fact that the appellant has been allegedly uncertain about the
reckoning dates as far as his liability for the years 1964, 1965, and 1966 is co
ncerned presents a mere problem in computation, but it does not make the ordinan
ces vague. In addition, the same would have been at most a difficult piece of le
gislation, which is not unfamiliar in this jurisdiction, but hardly a vague law.
As it stands, then, liability for the tax accrues on January 1, 1964 for fishpon
ds in operation prior thereto (Ordinance No. 12), and for new fishponds, three y
ears after their approval by the Bureau of Fisheries (Ordinance No. 15). This is
so since the amendatory act (Ordinance No. 12) merely granted amnesty unto old,
delinquent fishpond operators. It did not repeal its mother ordinances (Nos. 4
and 15). With respect to new operators, Ordinance No. 15 should still prevail.
To the Court, the ordinances in question set forth enough standards that clarify
imagined ambiguities. While such standards are not apparent from the face there
of, they are visible from the intent of the said ordinances.
The next inquiry is whether or not they can be said to be ex post facto measures
. The appellant argues that they are: "Amendment No. 12 passed on September 19,
1966, clearly provides that the payment of the imposed tax shall "beginning and
taking effect from the year 1964, if the fishpond started operating before the y
ear 1964.' In other words, it penalizes acts or events occurring before its pass
age, that is to say, 1964 and even prior thereto." 37
The Court finds no merit in this contention. As the Solicitor General notes, "Mu
nicipal Ordinance No. 4 was passed on May 14, 1955. 38 Hence, it cannot be said
that the amendment (under Ordinance No. 12) is being made to apply retroactively
(to 1964) since the reckoning period is 1955 (date of enactment). Essentially,
Ordinances Nos. 12 and 15 are in the nature of curative measures intended to fac
ilitate and enhance the collection of revenues the originally act, Ordinance No.
4, had prescribed. 39 Moreover, the act (of non-payment of the tax), had been,
since 1955, made punishable, and it cannot be said that Ordinance No. 12 imposes
a retroactive penalty. As we have noted, it operates to grant amnesty to operat
ors who had been delinquent between 1955 and 1964. It does not mete out a penalt
y, much less, a retrospective one.
The appellant assails, finally, the power of the municipal council of Pagbilao t
o tax "public forest land." 40 In Golden Ribbon Lumber Co., Inc. v. City of Butu
an 41 we held that local governments' taxing power does not extend to forest pro
ducts or concessions under Republic Act No. 2264, the Local Autonomy Act then in
force. (Republic Act No. 2264 likewise prohibited municipalities from imposing
percentage taxes on sales.)
First of all, the tax in question is not a tax on property, although the rate th
ereof is based on the area of fishponds ("P3.00 per hectare" 42). Secondly, fish
ponds are not forest lands, although we have held them to the agricultural lands
. 43 By definition, "forest" is "a large tract of land covered with a natural gr
owth of trees and underbush; a large wood." 44 (Accordingly, even if the challen
ged taxes were directed on the fishponds, they would not have been taxes on fore
st products.)
They are, more accurately, privilege taxes on the business of fishpond maintenan
ce. They are not charged against sales, which would have offended the doctrine e
nshrined by Golden Ribbon Lumber, 45 but rather on occupation, which is allowed
under Republic Act No. 2264. 46 They are what have been classified as fixed annu
al taxes and this is obvious from the ordinances themselves.
There is, then, no merit in the last objection.
WHEREFORE, the appeal is DISMISSED. Costs against the appellant.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, C
ortes, Griño-Aquino and Medialdea, JJ., concur.
Melencio-Herrera, and Regalado, J., took no part.
Gancayco, J., is on leave.

Footnotes
1 Rollo, 7-13.
2 Court of First Instance of Quezon, Branch 11, Hon. Manolo Madella, Presiding J
udge.
3 Rollo, Id., 14.
4 Brief of Appellant, 1-2.
5 Mun. Ord. No. 4 (1955), Id., 3.
6 Mun. Ord. No. 15 (1965), Id., 4.
7 Mun. Ord. No. 12 (1966), Id.
8 Id., 6.
9 Id., 4.
10 Id.
11 TRIBE, AMERICAN CONSTITUTIONAL LAW 718 (1978), citing Connally v. General Con
struction Co., 269 U.S. 385 (1926).
12 402 U.S. 611 (1971); see TRIBE, Id., 720-721.
13 See TRIBE, Id.
14 Id., 721.
15 Id., 720.
16 417 U.S. 733 (1974); see TRIBE, Id., 721.
17 No. L-27833, April 8, 1969, 27 SCRA 835, per Fernando, J.
18 Supra, 850.
19 Supra, 867.
20 Supra, 868.
21 Supra, 884; Sanchez, J., concurring and dissenting.
22 Supra.
23 Supra, 885.
24 Supra; see Castro, J., Separate Opinion, 888-913.
25 Supra, 902.
26 TRIBE, Id., 722.
27 Id.; see Shelton v. Tucker, 364 U.S. 479 (1960).
28 389 U.S. 258 (1967).
29 See TRIBE, Id., 723.
30 Id., 721.
31 Brief for the Appellee, 5.
32 It was the then Undersecretary of Agriculture and Natural Resources who signe
d the lease contract.
33 Rollo, Id., 13.
34 Brief of Appellant, Id., 8.
35 Id., 4.
36 Id.
37 Id., 10.
38 Brief for the Appellee, Id., 8.
39 MARTIN, STATUTORY CONSTRUCTION 31-32 (1984).
40 Brief of Appellant, Id., 11 -12.
41 No. L-18535, December 24, 1964,12 SCRA 611.
42 Brief of Appellant, Id., 3.
43 Santiago v. Insular Government, 12 Phil. 593 (1909).
44 Ramos v. Director of Lands, 39 Phil. 175 (1918).
45 Supra.
46 See Northern Philippines Tobacco Corporation v. Municipality of Agoo, La Unio
n, No. L-26447, January 30, 1970, 31 SCRA 304.
G.R. No. L-38429 June 30, 1988
CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU CARCEL, petitioners-appellants,
vs.
COURT OF FIRST INSTANCE OF AGUSAN DEL NORTE AND BUTUAN CITY, Branch 11, and the
CITY OF BUTUAN, respondents-appellees.
Romeo B. Sanchez, Eduardo Deza Mercado and Wilfred D. Asis for petitioners.
The City Legal Officer for respondents-appeliees.

GANCAYCO, J.:
At issue in the petition for review before Us is the validity and constitutional
ity of Ordinance No. 640 passed by the Municipal Board of the City of Butuan on
April 21, 1969, the title and text of which are reproduced below:
ORDINANCE--640
ORDINANCE PENALIZING ANY PERSON, GROUP OF PERSONS, ENTITY OR CORPORATION ENGAGED
IN THE BUSINESS OF SELLING ADMISSION TICKETS TO ANY MOVIE OR OTHER PUBLIC EXHIB
ITIONS, GAMES, CONTESTS OR OTHER PERFORMANCES TO REQUIRE CHILDREN BETWEEN SEVEN
(7) AND TWELVE (12) YEARS OF AGE TO PAY FULL PAYMENT FOR TICKETS INTENDED FOR AD
ULTS BUT SHOULD CHARGE ONLY ONE-HALF OF THE SAID TICKET
xxx xxx xxx
Be it ordained by the Municipal Board of the City of Butuan in session assembled
, that:
SECTION 1 It shall be unlawful for any person, group of persons, entity, or corpor
ation engaged in the business of selling admission tickets to any movie or other
public exhibitions, games, contests, or other performances to require children
between seven (7) and twelve (12) years of age to pay full payment for admission
tickets intended for adults but should charge only one-half of the value of the
said tickets.
SECTION 2 Any person violating the provisions of this Ordinance shall upon convict
ion be punished by a fine of not less than TWO HUNDRED PESOS (P200.00) but not m
ore than SIX HUNDRED PESOS (P600.00) or an imprisonment of not less than TWO (2)
MONTHS or not more than SIX (6) MONTHS or both such firm and imprisonment in th
e discretion of the Court.
If the violator be a firm or corporation the penalty shall be imposed upon the M
anager, Agent or Representative of such firm or corporation.
SECTION 3 This ordinance shall take effect upon its approval.
Petitioners are Carlos Balacuit Lamberto Tan, and Sergio Yu Carcel managers of t
he Maya and Dalisay Theaters, the Crown Theater, and the Diamond Theater, respec
tively. Aggrieved by the effect of Ordinance No. 640, they filed a complaint bef
ore the Court of First Instance of Agusan del Norte and Butuan City docketed as
Special Civil Case No. 237 on June 30, 1969 praying, inter alia, that the subjec
t ordinance be declared unconstitutional and, therefore, void and unenforceable.
1
Upon motion of the petitioners, 2 a temporary restraining order was issued on Ju
ly 14, 1969 by the court a quo enjoining the respondent City of Butuan and its o
fficials from enforcing Ordinance No. 640. 3 On July 29, 1969, respondents filed
their answer sustaining the validity of the ordinance. 4
On January 30, 1973, the litigants filed their stipulation of facts. 5 On June 4
, 1973, the respondent court rendered its decision, 6 the dispositive part of wh
ich reads:
IN THE LIGHT OF ALL THE FOREGOING, the Court hereby adjudges in favor of the res
pondents and against the petitioners, as follows:
1. Declaring Ordinance No. 640 of the City of Butuan constitutional and valid: P
rovided, however, that the fine for a single offense shall not exceed TWO HUNDRE
D PESOS, as prescribed in the aforequoted Section 15 (nn) of Rep. Act No. 523;
2. Dissolving the restraining order issued by this Court; and;
3. Dismissing the complaint, with costs against the petitioners.
4. SO ORDERED. 7
Petitioners filed their motion for reconsideration 8 of the decision of the cour
t a quo which was denied in a resolution of the said court dated November 10, 19
73. 9
Hence, this petition.
Petitioners attack the validity and constitutionality of Ordinance No. 640 on th
e grounds that it is ultra vires and an invalid exercise of police power.
Petitioners contend that Ordinance No. 640 is not within the power of' the Munic
ipal Board to enact as provided for in Section 15(n) of Republic Act No. 523, th
e Charter of the City of Butuan, which states:
Sec. 15. General powers and duties of the Board Except as otherwise provided by
law, and subject to the conditions and limitations thereof, the Municipal Board
shall have the following legislative powers:
xxx xxx xxx
(n) To regulate and fix the amount of the license fees for the following; . . .
theaters, theatrical performances, cinematographs, public exhibitions and all ot
her performances and places of amusements ...
xxx xxx xxx
Respondent City of Butuan, on the other hand, attempts to justify the enactment
of the ordinance by invoking the general welfare clause embodied in Section 15 (
nn) of the cited law, which provides:
(nn) To enact all ordinances it may deem necessary and proper for the sanitation
and safety, the furtherance of the prosperity, and the promotion of the moralit
y, peace, good order, comfort, convenience, and general welfare of the city and
its inhabitants, and such others as may be necessary to carry into effect and di
scharge the powers and duties conferred by this Act, and to fix the penalties fo
r the violation of the ordinances, which shall not exceed a two hundred peso fin
e or six months imprisonment, or both such fine and imprisonment, for a single o
ffense.
We can see from the aforecited Section 15(n) that the power to regulate and fix
the amount of license fees for theaters, theatrical performances, cinematographs
, public exhibitions and other places of amusement has been expressly granted to
the City of Butuan under its charter. But the question which needs to be resolv
ed is this: does this power to regulate include the authority to interfere in th
e fixing of prices of admission to these places of exhibition and amusement whet
her under its general grant of power or under the general welfare clause as invo
ked by the City?
This is the first time this Court is confronted with the question of direct inte
rference by the local government with the operation of theaters, cinematographs
and the like to the extent of fixing the prices of admission to these places. Pr
evious decisions of this Court involved the power to impose license fees upon bu
sinesses of this nature as a corollary to the power of the local government to r
egulate them. Ordinances which required moviehouses or theaters to increase the
price of their admission tickets supposedly to cover the license fees have been
held to be invalid for these impositions were considered as not merely license f
ees but taxes for purposes of revenue and not regulation which the cities have n
o power to exact, 10 unless expressly granted by its charter. 11
Applying the ruling in Kwong Sing v. City of Manila, 12 where the word "regulate
" was interpreted to include the power to control, to govern and to restrain, it
would seem that under its power to regulate places of exhibitions and amusement
, the Municipal Board of the City of Butuan could make proper police regulations
as to the mode in which the business shall be exercised.
While in a New York case, 13 an ordinance which regulates the business of sellin
g admission tickets to public exhibitions or performances by virtue of the power
of cities under the General City Law "to maintain order, enforce the laws, prot
ect property and preserve and care for the safety, health, comfort and general w
elfare of the inhabitants of the city and visitors thereto; and for any of said
purposes, to regulate and license occupations" was considered not to be within t
he scope of any duty or power implied in the charter. It was held therein that t
he power of regulation of public exhibitions and places of amusement within the
city granted by the charter does not carry with it any authority to interfere wi
th the price of admission to such places or the resale of tickets or tokens of a
dmission.
In this jurisdiction, it is already settled that the operation of theaters, cine
matographs and other places of public exhibition are subject to regulation by th
e municipal council in the exercise of delegated police power by the local gover
nment. 14 Thus, in People v. Chan, 15 an ordinance of the City of Manila prohibi
ting first run cinematographs from selling tickets beyond their seating capacity
was upheld as constitutional for being a valid exercise of police power. Still
in another case, 16 the validity of an ordinance of the City of Bacolod prohibit
ing admission of two or more persons in moviehouses and other amusement places w
ith the use of only one ticket was sustained as a valid regulatory police measur
e not only in the interest of preventing fraud in so far as municipal taxes are
concerned but also in accordance with public health, public safety, and the gene
ral welfare.
The City of Butuan, apparently realizing that it has no authority to enact the o
rdinance in question under its power to regulate embodied in Section 15(n), now
invokes the police power as delegated to it under the general welfare clause to
justify the enactment of said ordinance.
To invoke the exercise of police power, not only must it appear that the interes
t of the public generally requires an interference with private rights, but the
means adopted must be reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals. 17 The legislature may not, under t
he guise of protecting the public interest, arbitrarily interfere with private b
usiness, or impose unusual and unnecessary restrictions upon lawful occupations.
In other words, the determination as to what is a proper exercise of its police
power is not final or conclusive, but is subject to the supervision of the cour
ts. 18
Petitioners maintain that Ordinance No. 640 violates the due process clause of t
he Constitution for being oppressive, unfair, unjust, confiscatory, and an undue
restraint of trade, and violative of the right of persons to enter into contrac
ts, considering that the theater owners are bound under a contract with the film
owners for just admission prices for general admission, balcony and lodge.
In Homeowners' Association of the Philippines, Inc. v. Municipal Board of the Ci
ty of Manila, 19 this Court held:
The authority of municipal corporations to regulate is essentially police power,
Inasmuch as the same generally entails a curtailment of the liberty, the rights
and/or the property of persons, which are protected and even guaranteed by the
Constitution, the exercise of police power is necessarily subject to a qualifica
tion, limitation or restriction demanded by the regard, the respect and the obed
ience due to the prescriptions of the fundamental law, particularly those formin
g part of the Constitution of Liberty, otherwise known as the Bill of Rights the
police power measure must be reasonable. In other words, individual rights may
be adversely affected by the exercise of police power to the extent only and onl
y to the extent--that may be fairly required by the legitimate demands of public
interest or public welfare.
What is the reason behind the enactment of Ordinance No. 640?
A reading of the minutes of the regular session of the Municipal Board when the
ordinance in question was passed shows that a certain Councilor Calo, the propon
ent of the measure, had taken into account the complaints of parents that for th
em to pay the full price of admission for their children is too financially burd
ensome.
The trial court advances the view that "even if the subject ordinance does not s
pell out its raison d'etre in all probability the respondents were impelled by t
he awareness that children are entitled to share in the joys of their elders, bu
t that considering that, apart from size, children between the ages of seven and
twelve cannot fully grasp the nuance of movies or other public exhibitions, gam
es, contests or other performances, the admission prices with respect to them ou
ght to be reduced. 19a
We must bear in mind that there must be public necessity which demands the adopt
ion of proper measures to secure the ends sought to be attained by the enactment
of the ordinance, and the large discretion is necessarily vested in the legisla
tive authority to determine not only what the interests of the public require, b
ut what measures are necessary for the protection of such interests. 20 The meth
ods or means used to protect the public health, morals, safety or welfare, must
have some relation to the end in view, for under the guise of the police power,
personal rights and those pertaining to private property will not be permitted t
o be arbitralily invaded by the legislative department. 21
We agree with petitioners that the ordinance is not justified by any necessity f
or the public interest. The police power legislation must be firmly grounded on
public interest and welfare, and a reasonable relation must exist between purpos
es and means. 22 The evident purpose of the ordinance is to help ease the burden
of cost on the part of parents who have to shell out the same amount of money f
or the admission of their children, as they would for themselves, A reduction in
the price of admission would mean corresponding savings for the parents; howeve
r, the petitioners are the ones made to bear the cost of these savings. The ordi
nance does not only make the petitioners suffer the loss of earnings but it like
wise penalizes them for failure to comply with it. Furthermore, as petitioners p
oint out, there will be difficulty in its implementation because as already expe
rienced by petitioners since the effectivity of the ordinance, children over 12
years of age tried to pass off their age as below 12 years in order to avail of
the benefit of the ordinance. The ordinance does not provide a safeguard against
this undesirable practice and as such, the respondent City of Butuan now sugges
ts that birth certificates be exhibited by movie house patrons to prove the age
of children. This is, however, not at all practicable. We can see that the ordin
ance is clearly unreasonable if not unduly oppressive upon the business of petit
ioners. Moreover, there is no discernible relation between the ordinance and the
promotion of public health, safety, morals and the general welfare.
Respondent City of Butuan claims that it was impelled to protect the youth from
the pernicious practice of movie operators and other public exhibitions promoter
s or the like of demanding equal price for their admission tickets along with th
e adults. This practice is allegedly repugnant and unconscionable to the interes
t of the City in the furtherance of the prosperity, peace, good order, comfort,
convenience and the general well-being of its inhabitants.
There is nothing pernicious in demanding equal price for both children and adult
s. The petitioners are merely conducting their legitimate businesses. The object
of every business entrepreneur is to make a profit out of his venture. There is
nothing immoral or injurious in charging the same price for both children and a
dults. In fact, no person is under compulsion to purchase a ticket. It is a tota
lly voluntary act on the part of the purchaser if he buys a ticket to such perfo
rmances.
Respondent City of Butuan claims that Ordinance No. 640 is reasonable and necess
ary to lessen the economic burden of parents whose minor children are lured by t
he attractive nuisance being maintained by the petitioners. Respondent further a
lleges that by charging the full price, the children are being exploited by movi
e house operators. We fail to see how the children are exploited if they pay the
full price of admission. They are treated with the same quality of entertainmen
t as the adults. The supposition of the trial court that because of their age ch
ildren cannot fully grasp the nuances of such entertainment as adults do fails t
o convince Us that the reduction in admission ticket price is justifiable. In fa
ct, by the very claim of respondent that movies and the like are attractive nuis
ances, it is difficult to comprehend why the municipal board passed the subject
ordinance. How can the municipal authorities consider the movies an attractive n
uisance and yet encourage parents and children to patronize them by lowering the
price of admission for children? Perhaps, there is some ,truth to the argument
of petitioners that Ordinance No. 640 is detrimental to the public good and the
general welfare of society for it encourages children of tender age to frequent
the movies, rather than attend to their studies in school or be in their homes.
Moreover, as a logical consequence of the ordinance, movie house and theater ope
rators will be discouraged from exhibiting wholesome movies for general patronag
e, much less children's pictures if only to avoid compliance with the ordinance
and still earn profits for themselves. For after all, these movie house and thea
ter operators cannot be compelled to exhibit any particular kind of film except
those films which may be dictated by public demand and those which are restricte
d by censorship laws. So instead of children being able to share in the joys of
their elders as envisioned by the trial court, there will be a dearth of wholeso
me and educational movies for them to enjoy.
There are a number of cases decided by the Supreme Court and the various state c
ourts of the United States which upheld the right of the proprietor of a theater
to fix the price of an admission ticket as against the right of the state to in
terfere in this regard and which We consider applicable to the case at bar.
A theater ticket has been described to be either a mere license, revocable at th
e will of the proprietor of the theater or it may be evidence of a contract wher
eby, for a valuable consideration, the purchaser has acquired the right to enter
the theater and observe the performance on condition that he behaves properly.
23 Such ticket, therefore, represents a right, Positive or conditional, as the c
ase may be, according to the terms of the original contract of sale. This right
is clearly a right of property. The ticket which represents that right is also,
necessarily, a species of property. As such, the owner thereof, in the absence o
f any condition to the contrary in the contract by which he obtained it, has the
clear right to dispose of it, to sell it to whom he pleases and at such price a
s he can obtain. 24 So that an act prohibiting the sale of tickets to theaters o
r other places of amusement at more than the regular price was held invalid as c
onflicting with the state constitution securing the right of property. 25
In Collister vs. Hayman, 26 it was held:
The defendants were conducting a private business, which, even if clothed with a
public interest, was without a franchise to accommodate the public, and they ha
d the right to control it, the same as the proprietors of any other business, su
bject to such obligations as were placed upon them by statute. Unlike a carrier
of passengers, for instance, with a franchise from the state, and hence under ob
ligation to transport anyone who applies and to continue the business year in an
d year out, the proprietors of a theater can open and close their place at will,
and no one can make a lawful complaint. They can charge what they choose for ad
mission to their theater. They can limit the number admitted. They can refuse to
sell tickets and collect the price of admission at the door. They can preserve
order and enforce quiet while the performance is going on. They can make it a pa
rt of the contract and condition of admission, by giving due notice and printing
the condition in the ticket that no one shall be admitted under 21 years of age
, or that men only or women only shall be admitted, or that a woman cannot enter
 unless she is accompanied by a male escort, and the like. The proprietors, in t
he control of their business, may regulate the terms of admission in any reasona
ble way. If those terms are not satisfactory, no one is obliged to buy a ticket
or make the contract. If the terms are satisfactory, and the contract is made, t
he minds of the parties meet upon the condition, and the purchaser impliedly pro
mises to perform it.
In Tyson and Bro. United Theater Ticket Officers, Inc. vs. Banton, 27 the United
States Supreme Court held:
... And certainly a place of entertainment is in no legal sense a public utility
; and quite as certainly, its activities are not such that their enjoyment can b
e regarded under any conditions from the point of view of an emergency.
The interest of the public in theaters and other places of entertainment may be
more nearly, and with better reason, assimilated to the like interest in provisi
on stores and markets and in the rental of houses and apartments for residence p
urposes; although in importance it fails below such an interest in the proportio
n that food and shelter are of more moment than amusement or instruction. As we
have shown there is no legislative power to fix the prices of provisions or clot
hing, or the rental charges for houses and apartments, in the absence of some co
ntrolling emergency; and we are unable to perceive any dissimilarities of such q
uality or degree as to justify a different rule in respect of amusements and ent
ertainment ...
We are in consonance with the foregoing observations and conclusions of American
courts. In this jurisdiction, legislation had been passed controlling the price
s of goods commodities and drugs during periods of emergency, 28 limiting the ne
t profits of public utility 29 as well as regulating rentals of residential apar
tments for a limited period, 30 as a matter of national policy in the interest o
f public health and safety, economic security and the general welfare of the peo
ple. And these laws cannot be impugned as unconstitutional for being violative o
f the due process clause.
However, the same could not be said of theaters, cinematographs and other exhibi
tions. In no sense could these businesses be considered public utilities. The St
ate has not found it appropriate as a national policy to interfere with the admi
ssion prices to these performances. This does not mean however, that theaters an
d exhibitions are not affected with public interest even to a certain degree. Mo
tion pictures have been considered important both as a medium for the communicat
ion of Ideas and expression of the artistic impulse. Their effects on the percep
tions by our people of issues and public officials or public figures as well as
the prevailing cultural traits are considerable. 31 People of all ages flock to
movie houses, games and other public exhibitions for recreation and relaxation.
The government realizing their importance has seen it fit to enact censorship la
ws to regulate the movie industry. 32 Their aesthetic entertainment and even edu
cational values cannot be underestimated. Even police measures regulating the op
eration of these businesses have been upheld in order to safeguard public health
and safety.
Nonetheless, as to the question of the subject ordinance being a valid exercise
of police power, the same must be resolved in the negative. While it is true tha
t a business may be regulated, it is equally true that such regulation must be w
ithin the bounds of reason, that is, the regulatory ordinance must be reasonable
, and its provisions cannot be oppressive amounting to an arbitrary interference
with the business or calling subject of regulation. A lawful business or callin
g may not, under the guise of regulation, be unreasonably interfered with even b
y the exercise of police power. 33 A police measure for the regulation of the co
nduct, control and operation of a business should not encroach upon the legitima
te and lawful exercise by the citizens of their property rights. 34 The right of
 the owner to fix a price at which his property shall be sold or used is an inhe
rent attribute of the property itself and, as such, within the protection of the
due process clause."" Hence, the proprietors of a theater have a right to manag
e their property in their own way, to fix what prices of admission they think mo
st for their own advantage, and that any person who did not approve could stay a
way. 36
Respondent City of Butuan argues that the presumption is always in favor of the
validity of the ordinance. This maybe the rule but it has already been held that
although the presumption is always in favor of the validity or reasonableness o
f the ordinance, such presumption must nevertheless be set aside when the invali
dity or unreasonableness appears on the face of the ordinance itself or is estab
lished by proper evidence. 37 The exercise of police power by the local governme
nt is valid unless it contravenes the fundamental law of the land, or an act of
the legislature, or unless it is against public policy or is unreasonable, oppre
ssive, partial, discriminating or in derogation of a common right. 38
Ordinance No. 640 clearly invades the personal and property rights of petitioner
s for even if We could assume that, on its face, the interference was reasonable
, from the foregoing considerations, it has been fully shown that it is an unwar
ranted and unlawful curtailment of the property and personal rights of citizens.
For being unreasonable and an undue restraint of trade, it cannot, under the gu
ise of exercising police power, be upheld as valid.
WHEREFORE, the decision of the trial court in Special Civil Case No. 237 is here
by REVERSED and SET ASIDE and a new judgment is hereby rendered declaring Ordina
nce No. 640 unconstitutional and, therefore, null and void. This decision is imm
ediately executory.
SO ORDERED.
Yap, C.J., Narvasa, Cruz, Paras, Padilla, Bidin, Sarmiento and Griño-Aquino, JJ.,
concur.

Separate Opinions

GUTIERREZ, JR., J., Separate opinion

The issue before the Court is a simple one. Does Butuan City have the power to c
ompel theatre owners to charge only half fares for children below twelve even as
they charge all other moviegoers full prices for admission into moviehouses?
Instead of nullifying the municipal ordinance through a broad and sweeping justi
fication of property rights, I believe, however, that we should do so on a more
limited ground directly bearing on the issue.
I find no rational basis for classifying children as a distinct group insofar as
paying for admission into a moviehouse is concerned. There is absolutely no pre
tense that the municipal ordinance is intended to protect children, enhance thei
r morals, promote their health, safeguard their safety, improve their education,
or otherwise promote the general welfare. In fact, the effect of the ordinance
may be the opposite.
With the price of movie tickets suddenly within the reach of many children, they
 may neglect their studies or use money intended for food or school supplies to
enter moviehouses. Movie owners who are compelled to accept half prices for a ne
wly increased group of young patrons will be tempted to allow them to enter movi
ehouses indiscriminately, including those where scenes of violence, crime, or ev
en sex are portrayed. Addiction of the young to movie going is definitely injuri
ous to their health.
The avowed purpose of the ordinance--to ease the burden of costs for parents who
have to shell out the same amount of money for the admission of their children
as they would for themselves is not covered by police power. If the city cannot
compel refreshment parlors to charge half-prices for hamburgers, soft drinks, pi
zzas, or cakes consumed by children by what authority can it impose the obligati
on of similarly easing parents' burdens upon the owners of moviehouses?
As discussed by the minority opinion, the legislature may not., under the guise
of protecting the public interest, arbitrarily interfere with private business,
or impose unusual and unnecessary restrictions upon lawful occupations. The impo
sition enacted by the municipal board of Butuan City has not been justified by i
ts proponents as a restriction necessary for public health or public welfare. No
reasonable relationship has been shown between a valid purpose and the proper m
eans to accomplish it.
I hesitate, however, to make a brief for owners of theatres and expound a laisse
z faire approach insofar as their businesses are concerned. Movie houses may not
be public utilities but as places of entertainment affected with a certain degr
ee of public interest, they are subject to reasonable regulation. That regulatio
n is stronger and more restrictive than that of regular or ordinary businesses.
The following citation for instance, is pure obiter insofar as half-prices for m
inors are concerned:
... [T]he proprietors of a theater can open and close their place at will, and n
o one can make lawful complaint. They can charge what they choose for admission
to their theater. They can limit the number admitted. They can refuse to sell ti
ckets and collect the price of admission at the door. They can preserve order an
d enforce quiet while the performance is going on. They can make it a part of th
e contract and a condition of admission, by giving due notice and printing the c
ondition in the ticket that no one shall be admitted under 21 years of age, or t
hat men only or women only shall be admitted, or that a woman cannot enter unles
s she is accompanied by a male escort, and the like. The proprietors, in the con
trol of their business, may regulate the terms of admission in any reasonable wa
y. If those terms are not satisfactory, no one is obliged to buy a ticket or mak
e the contract. If the terms are satisfactory, and the contract is made, the min
ds of the parties meet upon the condition, and the purchaser impliedly promises
to perform it. (Collister v. Hayman, 76 N.E. 20,183 N.Y. 250, 253, 1 L.R.A. [N.S
.] 1188, 11 Am. St. Rep. 740, An Cas. 344).
I see no reason at this time why we should pass upon situations that are not bef
ore us or warn municipal governments beforehand to avoid enacting certain regula
tions when nobody knows exactly what circumstances may call for those regulation
s.
For instance,
A theater ticket has been described to be either a mere license, revocable at th
e will of the proprietor of the theater or it may be evidence of a contract wher
eby, for a valuable consideration, the purchaser has acquired the right to enter
the theater and observe the performance on condition that he behaves properly (
Law of the State.
Screen and Radio by Marchetti, 1939, ec., page 268). Such ticket, therefore, rep
resents a right, positive or conditional, as the case may be, according to the t
erms of the original contract of sale. This right is clearly a right of property
. The ticket which represents that right is also, necessarily, a species of prop
erty. As such, the owner thereof, in the absence of any condition to the contrar
y y in the contract by which he obtained it, has the clear right to dispose of i
t, to sell it to whom he pleases and at such price as he can obtain Ibids, citin
g Ex-parte Quarg, 84 Pac., 766,149 Cal. 79, 80, 5 L.R.A. [N.S], 183, 117 Am. St.
Rep. 11 5, 9 Ann. Ca. 747; Also People v. Steele, 231, III. 340, 344, 14 R.A. [
N.S.] 361, 121 Am. St. Rep. 321, 83 N.E. 236). ....
xxx xxx xxx
.... A lawful business or calling may not, under the guise of regulation, be unr
easonably interfered with even by the exercise of police power. (Ogden City v. L
eo, 54 Utah 556, 182 P. 530) A police measure for the regulation of the conduct,
control and operation of a business should not encroach upon the legitimate and
lawful exercise by the citizens of their property rights (Pampanga Bus Co., Inc
. v. Municipality of Tarlac, 3 SCRA 816). The right of the owner to fix a price
at which his property shall be sold or used is an inherent attribute of the prop
erty itself and, as such, within the protection of the due process clause (Tyson
and Bro.--United Theater Ticket Officers, Inc. v. Banton, supra). Hence the pro
prietors of a theater have a right to manage their property in their own way, to
fix what prices of admission they think most for their own advantage, and that
ally person who did not approve could stay away (Ibid, citing v. Clifford v. Bra
ndon, 2 Campb. 358, 368.).
may be interpreted as carte blanche for movie owners to practically ignore munic
ipal regulation and do as they please.
More appropriate to my maid is to state that while tile Butuan City ordinance is
invalid, it does not necessarily follow that all forms of regulation are proscr
ibed.
We have ruled in People v. Chan (65 Phil. 612):
In the first place, it must be noted that there can be no doubt that the City of
Manila exercises police power, by delegation and that in the exercise of that p
ower it is authorized to enact ordinances for, the regulation of the operation o
f theatres and cinematographs (sec. 2444(m) and (ee) of the Revised Administrati
ve Code: U.S. v. Gomez Jesus, 31 Phil. 218; U.S. v. Pompeya, 31 Phil. 245).
On April 17, 1935, Ordinance No. 2347 was approved. In section 1 it provides tha
t all first run theatres or cinematographs should register their seating capacit
y with the City Treasurer, and in section 1 it prohibits the sale of tickets in
said theatres or cinematographs in excess of their registered seating capacity.
Before the approval of Ordinance No. 2347, Ordinance No. 2188, approved on July
22, 1933, was in force, section 1 of which divides cinematographs into three dif
ferent classes: first, second and third. The first class includes those located
on certain and specified streets like Rosario, Escolta, etc., which exhibit film
s for the first time; those belonging to the second class are those which, not b
eing located on said streets, also exhibit films for the first time, and those w
hich, being located on said streets, regularly show films for the second time or
which have the exclusive right to show secondhand films; and the third class co
mprehends all those which are not included in the first and second classes.
xxx xxx xxx
To the foregoing must be added, and this is of common knowledge, that the films
which are shown for the first time attract a large attendance, and the theatre o
r cinematograph, whether it is first or second class, presenting shows for the f
irst time, would be suffocatingly overcrowded if the number of tickets were not
limited. This is the reason for the prohibition of the sale of tickets in excess
of the seating capacity. The prohibition applies with equal force wherever the
same reason exists, that is, to first and second class theatres which show films
for the first time. (at pp. 612- 613)
There being a rational basis for the restriction of sales of tickets beyond seat
ing capacity, the ordinance is perfectly valid.
The same is true for the situation found in Samson v. Mayor of Bacolod City (60
SCRA 274):
When it is further remembered that insofar as movie houses and other places of a
musement are concerned. (According to Section 17[1] of the City Charter of Bacol
od, Commonwealth Act No. 326 119381: 'To regulate and fix the amount of the fees
for the following: ... theatres, theatrical performances, cinematographs, publi
c exhibitions, circuses and all other performances and places of amusements ....
") the least doubt cannot be entertained as to the validity of a measure prohibi
ting a proprietor, lessee or operator of an amusement place to admit two or more
persons with only one admission ticket, not only in the interest of preventing
fraud insofar as municipal taxes are concerned but also in accordance with publi
c health, public safety and the general welfare. (Cf. People v. Chan, 65 Phil. 6
11 [1938]). An American Supreme Court decision, Western Turf Association v. Gree
nberg, (204 US 359 [1907] the opinion being penned by Justice Harlan is equally
illuminating: 'The statute is only a regulation of places of public entertainmen
t and amusement upon terms of equal and exact justice to everyone holding a tick
et of admission, and who is not, at the time, under the influence of liquor, or
boisterous in conduct, or of lewd and immoral character. .... Such a regulation,
in itself just, is likewise promotive of peace and good order among those who a
ttend places of public entertainment and amusement. It is neither an arbitrary e
xertion of the state's inherent or governmental power, nor a violation of any ri
ght secured by the constitution of the United States. (at pp. 363-364).
The City of Butuan tries to justify the challenged ordinance by invoking police
power. The invocation is improper. The definitions of police power, including it
s exercise based on the general welfare clause, are emphasized to show that the
respondents' arguments have no merit
Police power is inherent in the State but not in municipal corporations. For a m
unicipal corporation to exercise police power, there must be a legislative grant
which necessarily also sets the limits for the exercise of the power.
In the Philippines, the grant of authority to the municipality to exercise polic
e power is embodied in Section 2238 of the Revised Administrative Code, otherwis
e known as the General Welfare Clause. Chartered cities are granted similar auth
ority in their respective charters
The general welfare clause has two branches. The first authorizes the municipal
council to enact such ordinances and make such regulations not repugnant to law,
as may be necessary to carry into effect and discharge the powers and duties co
nferred upon the municipal council by law. The second branch authorizes the muni
cipality to enact such ordinances as may be necessary and proper for the health
and safety, promote the prosperity, improve the morals, peace, good order, comfo
rt, and convenience of the municipality and inhabitants thereof, and for the pro
tection of property therein. (U.S. v. Salaveria 39 Phil. 103).
This Court has generally been liberal in sustaining municipal action based on th
e general welfare clause. In the case before us, however, there appears to be no
 basis for sustaining the ordinance even on a generous interpretation of the gen
eral welfare clause.

Separate Opinions
GUTIERREZ, JR., J., Separate opinion
The issue before the Court is a simple one. Does Butuan City have the power to c
ompel theatre owners to charge only half fares for children below twelve even as
they charge all other moviegoers full prices for admission into moviehouses?
Instead of nullifying the municipal ordinance through a broad and sweeping justi
fication of property rights, I believe, however, that we should do so on a more
limited ground directly bearing on the issue.
I find no rational basis for classifying children as a distinct group insofar as
paying for admission into a moviehouse is concerned. There is absolutely no pre
tense that the municipal ordinance is intended to protect children, enhance thei
r morals, promote their health, safeguard their safety, improve their education,
or otherwise promote the general welfare. In fact, the effect of the ordinance
may be the opposite.
With the price of movie tickets suddenly within the reach of many children, they
may neglect their studies or use money intended for food or school supplies to
enter moviehouses. Movie owners who are compelled to accept half prices for a ne
wly increased group of young patrons will be tempted to allow them to enter movi
ehouses indiscriminately, including those where scenes of violence, crime, or ev
en sex are portrayed. Addiction of the young to movie going is definitely injuri
ous to their health.
The avowed purpose of the ordinance--to ease the burden of costs for parents who
have to shell out the same amount of money for the admission of their children
as they would for themselves is not covered by police power. If the city cannot
compel refreshment parlors to charge half-prices for hamburgers, soft drinks, pi
zzas, or cakes consumed by children by what authority can it impose the obligati
on of similarly easing parents' burdens upon the owners of moviehouses?
As discussed by the minority opinion, the legislature may not., under the guise
of protecting the public interest, arbitrarily interfere with private business,
or impose unusual and unnecessary restrictions upon lawful occupations. The impo
sition enacted by the municipal board of Butuan City has not been justified by i
ts proponents as a restriction necessary for public health or public welfare. No
reasonable relationship has been shown between a valid purpose and the proper m
eans to accomplish it.
I hesitate, however, to make a brief for owners of theatres and expound a laisse
z faire approach insofar as their businesses are concerned. Movie houses may not
be public utilities but as places of entertainment affected with a certain degr
ee of public interest, they are subject to reasonable regulation. That regulatio
n is stronger and more restrictive than that of regular or ordinary businesses.
The following citation for instance, is pure obiter insofar as half-prices for m
inors are concerned:
... [T]he proprietors of a theater can open and close their place at will, and n
o one can make lawful complaint. They can charge what they choose for admission
to their theater. They can limit the number admitted. They can refuse to sell ti
ckets and collect the price of admission at the door. They can preserve order an
d enforce quiet while the performance is going on. They can make it a part of th
e contract and a condition of admission, by giving due notice and printing the c
ondition in the ticket that no one shall be admitted under 21 years of age, or t
hat men only or women only shall be admitted, or that a woman cannot enter unles
s she is accompanied by a male escort, and the like. The proprietors, in the con
trol of their business, may regulate the terms of admission in any reasonable wa
y. If those terms are not satisfactory, no one is obliged to buy a ticket or mak
e the contract. If the terms are satisfactory, and the contract is made, the min
ds of the parties meet upon the condition, and the purchaser impliedly promises
to perform it. (Collister v. Hayman, 76 N.E. 20,183 N.Y. 250, 253, 1 L.R.A. [N.S
.] 1188, 11 Am. St. Rep. 740, An Cas. 344).
I see no reason at this time why we should pass upon situations that are not bef
ore us or warn municipal governments beforehand to avoid enacting certain regula
tions when nobody knows exactly what circumstances may call for those regulation
s.
For instance,
A theater ticket has been described to be either a mere license, revocable at th
e will of the proprietor of the theater or it may be evidence of a contract wher
eby, for a valuable consideration, the purchaser has acquired the right to enter
the theater and observe the performance on condition that he behaves properly (
Law of the State.
Screen and Radio by Marchetti, 1939, ec., page 268). Such ticket, therefore, rep
resents a right, positive or conditional, as the case may be, according to the t
erms of the original contract of sale. This right is clearly a right of property
. The ticket which represents that right is also, necessarily, a species of prop
erty. As such, the owner thereof, in the absence of any condition to the contrar
y y in the contract by which he obtained it, has the clear right to dispose of i
t, to sell it to whom he pleases and at such price as he can obtain Ibids, citin
g Ex-parte Quarg, 84 Pac., 766,149 Cal. 79, 80, 5 L.R.A. [N.S], 183, 117 Am. St.
Rep. 11 5, 9 Ann. Ca. 747; Also People v. Steele, 231, III. 340, 344, 14 R.A. [
N.S.] 361, 121 Am. St. Rep. 321, 83 N.E. 236). ....
xxx xxx xxx
.... A lawful business or calling may not, under the guise of regulation, be unr
easonably interfered with even by the exercise of police power. (Ogden City v. L
eo, 54 Utah 556, 182 P. 530) A police measure for the regulation of the conduct,
control and operation of a business should not encroach upon the legitimate and
lawful exercise by the citizens of their property rights (Pampanga Bus Co., Inc
. v. Municipality of Tarlac, 3 SCRA 816). The right of the owner to fix a price
at which his property shall be sold or used is an inherent attribute of the prop
erty itself and, as such, within the protection of the due process clause (Tyson
and Bro.--United Theater Ticket Officers, Inc. v. Banton, supra). Hence the pro
prietors of a theater have a right to manage their property in their own way, to
fix what prices of admission they think most for their own advantage, and that
ally person who did not approve could stay away (Ibid, citing v. Clifford v. Bra
ndon, 2 Campb. 358, 368.).
may be interpreted as carte blanche for movie owners to practically ignore munic
ipal regulation and do as they please.
More appropriate to my maid is to state that while tile Butuan City ordinance is
invalid, it does not necessarily follow that all forms of regulation are proscr
ibed.
We have ruled in People v. Chan (65 Phil. 612):
In the first place, it must be noted that there can be no doubt that the City of
Manila exercises police power, by delegation and that in the exercise of that p
ower it is authorized to enact ordinances for, the regulation of the operation o
f theatres and cinematographs (sec. 2444(m) and (ee) of the Revised Administrati
ve Code: U.S. v. Gomez Jesus, 31 Phil. 218; U.S. v. Pompeya, 31 Phil. 245).
On April 17, 1935, Ordinance No. 2347 was approved. In section 1 it provides tha
t all first run theatres or cinematographs should register their seating capacit
y with the City Treasurer, and in section 1 it prohibits the sale of tickets in
said theatres or cinematographs in excess of their registered seating capacity.
Before the approval of Ordinance No. 2347, Ordinance No. 2188, approved on July
22, 1933, was in force, section 1 of which divides cinematographs into three dif
ferent classes: first, second and third. The first class includes those located
on certain and specified streets like Rosario, Escolta, etc., which exhibit film
s for the first time; those belonging to the second class are those which, not b
eing located on said streets, also exhibit films for the first time, and those w
hich, being located on said streets, regularly show films for the second time or
which have the exclusive right to show secondhand films; and the third class co
mprehends all those which are not included in the first and second classes.
xxx xxx xxx
To the foregoing must be added, and this is of common knowledge, that the films
which are shown for the first time attract a large attendance, and the theatre o
r cinematograph, whether it is first or second class, presenting shows for the f
irst time, would be suffocatingly overcrowded if the number of tickets were not
limited. This is the reason for the prohibition of the sale of tickets in excess
of the seating capacity. The prohibition applies with equal force wherever the
same reason exists, that is, to first and second class theatres which show films
for the first time. (at pp. 612- 613)
There being a rational basis for the restriction of sales of tickets beyond seat
ing capacity, the ordinance is perfectly valid.
The same is true for the situation found in Samson v. Mayor of Bacolod City (60
SCRA 274):
When it is further remembered that insofar as movie houses and other places of a
musement are concerned. (According to Section 17[1] of the City Charter of Bacol
od, Commonwealth Act No. 326 119381: 'To regulate and fix the amount of the fees
for the following: ... theatres, theatrical performances, cinematographs, publi
c exhibitions, circuses and all other performances and places of amusements ....
") the least doubt cannot be entertained as to the validity of a measure prohibi
ting a proprietor, lessee or operator of an amusement place to admit two or more
persons with only one admission ticket, not only in the interest of preventing
fraud insofar as municipal taxes are concerned but also in accordance with publi
c health, public safety and the general welfare. (Cf. People v. Chan, 65 Phil. 6
11 [1938]). An American Supreme Court decision, Western Turf Association v. Gree
nberg, (204 US 359 [1907] the opinion being penned by Justice Harlan is equally
illuminating: 'The statute is only a regulation of places of public entertainmen
t and amusement upon terms of equal and exact justice to everyone holding a tick
et of admission, and who is not, at the time, under the influence of liquor, or
boisterous in conduct, or of lewd and immoral character. .... Such a regulation,
in itself just, is likewise promotive of peace and good order among those who a
ttend places of public entertainment and amusement. It is neither an arbitrary e
xertion of the state's inherent or governmental power, nor a violation of any ri
ght secured by the constitution of the United States. (at pp. 363-364).
The City of Butuan tries to justify the challenged ordinance by invoking police
power. The invocation is improper. The definitions of police power, including it
s exercise based on the general welfare clause, are emphasized to show that the
respondents' arguments have no merit
Police power is inherent in the State but not in municipal corporations. For a m
unicipal corporation to exercise police power, there must be a legislative grant
which necessarily also sets the limits for the exercise of the power.
In the Philippines, the grant of authority to the municipality to exercise polic
e power is embodied in Section 2238 of the Revised Administrative Code, otherwis
e known as the General Welfare Clause. Chartered cities are granted similar auth
ority in their respective charters
The general welfare clause has two branches. The first authorizes the municipal
council to enact such ordinances and make such regulations not repugnant to law,
as may be necessary to carry into effect and discharge the powers and duties co
nferred upon the municipal council by law. The second branch authorizes the muni
cipality to enact such ordinances as may be necessary and proper for the health
and safety, promote the prosperity, improve the morals, peace, good order, comfo
rt, and convenience of the municipality and inhabitants thereof, and for the pro
tection of property therein. (U.S. v. Salaveria 39 Phil. 103).
This Court has generally been liberal in sustaining municipal action based on th
e general welfare clause. In the case before us, however, there appears to be no
basis for sustaining the ordinance even on a generous interpretation of the gen
eral welfare clause.
Footnotes
1 Pages 1-8, Record on Appeal.
2 Pages 11-17, supra.
3 Pages 17-18, supra.
4 Pages 21-23, supra.
5 Pages 25-26, supra.
6 Pages 18-28, Rollo.
7 Penned by Judge Vicente B. Echaves, Jr.
8 Pages 35-41, Record on Appeal.
9 Pages 47-49, supra.
10 Lacson v. Bacolod City, 4 SCRA 1001; Arong v. Raffinan, 98 Phil. 422, citing
City of Baguio v. Jose de la Rosa, et al., G.R. No. L-8268-70.
11 Eastern Theatrical Company, Inc. v. Victor Antonio et al., 46 O.G. (supp.) 30
, cited in Along v. Raffinan, supra.
12 41 Phil. 103. See also Samson v. Mayor of Bacolod City, 60 SCRA 267.
13 In re Gilchrist, 181 N.Y.S. 245, 110 Misc. Rep. 362.
14 Sec. 2238 of the Revised Administrative Code of 1917, as amended, now found i
n Sec. 149(a) and Sec. 177(a) of the Local Government Code. The general welfare
clause has been similarly set forth in various city charters.
15 65 Phil, 611.
16 Samson v. Mayor of Bacolod City, supra.
17 U.S. v. Toribio 15 Phil. 85; Fable v. City of Manila, 21 Phil. 486; Kwong Sin
g v. City of Manila, supra.
18 Fable v. City of Manila, supra.
19 24 SCRA 856.
19a Page 25, Rollo.
20 Fabie v. City of Manila, supra.
21 Kirtley v. State, 84 N.E. 2d. 712.
22 Ichong v. Hernandez, 101 Phil. 11 51.
23 Law of the Stage, Screen and Radio by Marchetti, 1939 ed., page 268.
24 Ibid, citing Ex-parte Quarg, 84 Pac. 766, 149 Cal. 79, 80, 5 L.R.A. (N.S.) 18
3, 117 Am. St. Rep. 115, 9 Ann. Ca 747; Also, People v. Steele, 231 Ill. 340, 34
4,14 L.R.A. (N.S.) 361, 121 Am. St. Rep. 321, 83 N.E. 236.
25 Ex-Parte Quarg, supra.
26 76 N.E. 20,183 N.Y. 250, 253, 1 L.R.A. (N.S.) 1188, 11 Am. St.
Rep. 740, An Cas. 344.
27 273 U.S. 418-456.
28 People v. Chuchi, Phil. 977; People v. Dela Cruz, 92 Phil. 906.
29 Alalayan v. National Power Corporation, 24 SCRA 172.
30 B.P. Blg. 877. See also Homeowners' Association of the Philippines, Inc. v. M
unicipal Board of Manila, supra.
31 Gonzales v. Kalaw-Katigbak, 137 SCRA 717.
32 P.D. No. 1986, amending R.A. 3060.
33 Ogden City v. Leo, 54 Utah 556,182 P. 530.
34 Pampanga Bus Co., Inc. v. Municipality of Tarlac, 3 SCRA 816.
35 Tyson and Bro.--United Theater Ticket Officers Inc. v. Banton, supra.
36 Ibid, citing Clifford v. Brandon, 2 Campb 358, 368.
37 Dela Cruz v. Paras, 123 SCRA 569; U.S. v. Salaveria,, 39 Phil. 102.
38 De la Cruz v. Paras, 123 SCRA 569; U.S. Salaveria, 39 Phil. 102.
G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON. JUA
N PONCE ENRILE, in his capacity as Minister of National Defense; HON. ALFREDO L.
JUINIO, in his capacity as Minister Of Public Works, Transportation and Communi
cations; and HON: BALTAZAR AQUINO, in his capacity as Minister of Public Highway
s, respondents.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpa
lo and Solicitor Amado D. Aquino for respondents.

FERNANDO, J.:
The validity of a letter of Instruction 1 providing for an early seaming device
for motor vehicles is assailed in this prohibition proceeding as being violative
of the constitutional guarantee of due process and, insofar as the rules and re
gulations for its implementation are concerned, for transgressing the fundamenta
l principle of non- delegation of legislative power. The Letter of Instruction i
s stigmatized by petitioner who is possessed of the requisite standing, as being
arbitrary and oppressive. A temporary restraining order as issued and responden
ts Romeo F. Edu, Land Transportation Commissioner Juan Ponce Enrile, Minister of
National Defense; Alfredo L. Juinio, Minister of Public Works, Transportation a
nd Communications; and Baltazar Aquino, Minister of Public Highways; were to ans
wer. That they did in a pleading submitted by Solicitor General Estelito P. Mend
oza. 2 Impressed with a highly persuasive quality, it makes devoid clear that th
e imputation of a constitutional infirmity is devoid of justification The Letter
of Instruction on is a valid police power measure. Nor could the implementing r
ules and regulations issued by respondent Edu be considered as amounting to an e
xercise of legislative power. Accordingly, the petition must be dismissed.
The facts are undisputed. The assailed Letter of Instruction No. 229 of Presiden
t Marcos, issued on December 2, 1974, reads in full: "[Whereas], statistics show
that one of the major causes of fatal or serious accidents in land transportati
on is the presence of disabled, stalled or parked motor vehicles along streets o
r highways without any appropriate early warning device to signal approaching mo
torists of their presence; [Whereas], the hazards posed by such obstructions to
traffic have been recognized by international bodies concerned with traffic safe
ty, the 1968 Vienna Convention on Road Signs and Signals and the United Nations
Organization (U.N.); [Whereas], the said Vienna Convention which was ratified by
the Philippine Government under P.D. No. 207, recommended the enactment of loca
l legislation for the installation of road safety signs and devices; [Now, there
fore, I, Ferdinand E. Marcos], President of the Philippines, in the interest of
safety on all streets and highways, including expressways or limited access road
s, do hereby direct: 1. That all owners, users or drivers of motor vehicles shal
l have at all times in their motor vehicles at least one (1) pair of early warni
ng device consisting of triangular, collapsible reflectorized plates in red and
yellow colors at least 15 cms. at the base and 40 cms. at the sides. 2. Whenever
any motor vehicle is stalled or disabled or is parked for thirty (30) minutes o
r more on any street or highway, including expressways or limited access roads,
the owner, user or driver thereof shall cause the warning device mentioned herei
n to be installed at least four meters away to the front and rear of the motor v
ehicle staged, disabled or parked. 3. The Land Transportation Commissioner shall
cause Reflectorized Triangular Early Warning Devices, as herein described, to b
e prepared and issued to registered owners of motor vehicles, except motorcycles
and trailers, charging for each piece not more than 15 % of the acquisition cos
t. He shall also promulgate such rules and regulations as are appropriate to eff
ectively implement this order. 4. All hereby concerned shall closely coordinate
and take such measures as are necessary or appropriate to carry into effect then
instruction. 3 Thereafter, on November 15, 1976, it was amended by Letter of In
struction No. 479 in this wise. "Paragraph 3 of Letter of Instruction No. 229 is
hereby amended to read as follows: 3. The Land transportation Commissioner shal
l require every motor vehicle owner to procure from any and present at the regis
tration of his vehicle, one pair of a reflectorized early warning device, as d b
ed of any brand or make chosen by mid motor vehicle . The Land Transportation Co
mmissioner shall also promulgate such rule and regulations as are appropriate to
effectively implement this order.'" 4 There was issued accordingly, by responde
nt Edu, the implementing rules and regulations on December 10, 1976. 5 They were
not enforced as President Marcos on January 25, 1977, ordered a six-month perio
d of suspension insofar as the installation of early warning device as a pre-reg
istration requirement for motor vehicle was concerned. 6 Then on June 30, 1978,
another Letter of Instruction 7 the lifting of such suspension and directed the
immediate implementation of Letter of Instruction No. 229 as amended. 8 It was n
ot until August 29, 1978 that respondent Edu issued Memorandum Circular No. 32,
worded thus: "In pursuance of Letter of Instruction No. 716, dated June 30, 1978
, the implementation of Letter of Instruction No. 229, as amended by Letter of I
nstructions No. 479, requiring the use of Early Warning Devices (EWD) on motor v
ehicle, the following rules and regulations are hereby issued: 1. LTC Administra
tive Order No. 1, dated December 10, 1976; shall now be implemented provided tha
t the device may come from whatever source and that it shall have substantially
complied with the EWD specifications contained in Section 2 of said administrati
ve order; 2. In order to insure that every motor vehicle , except motorcycles, i
s equipped with the device, a pair of serially numbered stickers, to be issued f
ree of charge by this Commission, shall be attached to each EWD. The EWD. serial
number shall be indicated on the registration certificate and official receipt
of payment of current registration fees of the motor vehicle concerned. All Orde
rs, Circulars, and Memoranda in conflict herewith are hereby superseded, This Or
der shall take effect immediately. 9 It was for immediate implementation by resp
ondent Alfredo L. Juinio, as Minister of Public Works, transportation, and Commu
nications. 10
Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car
, Model 13035, already properly equipped when it came out from the assembly line
s with blinking lights fore and aft, which could very well serve as an early war
ning device in case of the emergencies mentioned in Letter of Instructions No. 2
29, as amended, as well as the implementing rules and regulations in Administrat
ive Order No. 1 issued by the land transportation Commission," 11 alleged that s
aid Letter of Instruction No. 229, as amended, "clearly violates the provisions
and delegation of police power, [sic] * * *: " For him they are "oppressive, unr
easonable, arbitrary, confiscatory, nay unconstitutional and contrary to the pre
cepts of our compassionate New Society." 12 He contended that they are "infected
with arbitrariness because it is harsh, cruel and unconscionable to the motorin
g public;" 13 are "one-sided, onerous and patently illegal and immoral because [
they] will make manufacturers and dealers instant millionaires at the expense of
car owners who are compelled to buy a set of the so-called early warning device
at the rate of P 56.00 to P72.00 per set." 14 are unlawful and unconstitutional
and contrary to the precepts of a compassionate New Society [as being] compulso
ry and confiscatory on the part of the motorists who could very well provide a p
ractical alternative road safety device, or a better substitute to the specified
set of EWD's." 15 He therefore prayed for a judgment both the assailed Letters
of Instructions and Memorandum Circular void and unconstitutional and for a rest
raining order in the meanwhile.
A resolution to this effect was handed down by this Court on October 19, 1978: "
L-49112 (Leovillo C. Agustin v. Hon. Romeo F. Edu, etc., et al.) Considering the
allegations contained, the issues raised and the arguments adduced in the petit
ion for prohibition with writ of p prohibitory and/or mandatory injunction, the
Court Resolved to (require) the respondents to file an answer thereto within ton
(10) days from notice and not to move to dismiss the petition. The Court furthe
r Resolved to [issue] a [temporary restraining order] effective as of this date
and continuing until otherwise ordered by this Court. 16
Two motions for extension were filed by the Office of the Solicitor General and
granted. Then on November 15, 1978, he Answer for respondents was submitted. Aft
er admitting the factual allegations and stating that they lacked knowledge or i
nformation sufficient to form a belief as to petitioner owning a Volkswagen Beet
le car," they "specifically deny the allegations and stating they lacked knowled
ge or information sufficient to form a belief as to petitioner owning a Volkswag
en Beetle Car, 17 they specifically deny the allegations in paragraphs X and XI
(including its subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter o
f Instruction No. 229 as amended by Letters of Instructions Nos. 479 and 716 as
well as Land transportation Commission Administrative Order No. 1 and its Memora
ndum Circular No. 32 violates the constitutional provisions on due process of la
w, equal protection of law and undue delegation of police power, and that the sa
me are likewise oppressive, arbitrary, confiscatory, one-sided, onerous, immoral
unreasonable and illegal the truth being that said allegations are without lega
l and factual basis and for the reasons alleged in the Special and Affirmative D
efenses of this Answer." 18 Unlike petitioner who contented himself with a rheto
rical recital of his litany of grievances and merely invoked the sacramental phr
ases of constitutional litigation, the Answer, in demonstrating that the assaile
d Letter of Instruction was a valid exercise of the police power and implementin
g rules and regulations of respondent Edu not susceptible to the charge that the
re was unlawful delegation of legislative power, there was in the portion captio
ned Special and Affirmative Defenses, a citation of what respondents believed to
be the authoritative decisions of this Tribunal calling for application. They a
re Calalang v. Williams, 19 Morfe v. Mutuc, 20 and Edu v. Ericta. 21 Reference w
as likewise made to the 1968 Vienna Conventions of the United Nations on road tr
affic, road signs, and signals, of which the Philippines was a signatory and whi
ch was duly ratified. 22 Solicitor General Mendoza took pains to refute in detai
l, in language calm and dispassionate, the vigorous, at times intemperate, accus
ation of petitioner that the assailed Letter of Instruction and the implementing
rules and regulations cannot survive the test of rigorous scrutiny. To repeat,
its highly-persuasive quality cannot be denied.
This Court thus considered the petition submitted for decision, the issues being
clearly joined. As noted at the outset, it is far from meritorious and must be
dismissed.
1. The Letter of Instruction in question was issued in the exercise of the polic
e power. That is conceded by petitioner and is the main reliance of respondents.
It is the submission of the former, however, that while embraced in such a cate
gory, it has offended against the due process and equal protection safeguards of
the Constitution, although the latter point was mentioned only in passing. The
broad and expansive scope of the police power which was originally Identified by
Chief Justice Taney of the American Supreme Court in an 1847 decision as "nothi
ng more or less than the powers of government inherent in every sovereignty" 23
was stressed in the aforementioned case of Edu v. Ericta thus: "Justice Laurel,
in the first leading decision after the Constitution came into force, Calalang v
. Williams, Identified police power with state authority to enact legislation th
at may interfere with personal liberty or property in order to promote the gener
al welfare. Persons and property could thus 'be subjected to all kinds of restra
ints and burdens in order to we the general comfort, health and prosperity of th
e state.' Shortly after independence in 1948, Primicias v. Fugoso reiterated the
doctrine, such a competence being referred to as 'the power to prescribe regula
tions to promote the health, morals, peace, education, good order or safety, and
general welfare of the people. The concept was set forth in negative terms by J
ustice Malcolm in a pre-Commonwealth decision as 'that inherent and plenary powe
r in the State which enables it to prohibit all things hurtful to the comfort, s
afety and welfare of society. In that sense it could be hardly distinguishable a
s noted by this Court in Morfe v. Mutuc with the totality of legislative power.
It is in the above sense the greatest and most powerful at. tribute of governmen
t. It is, to quote Justice Malcolm anew, 'the most essential, insistent, and at
least table powers, I extending as Justice Holmes aptly pointed out 'to all the
great public needs.' Its scope, ever-expanding to meet the exigencies of the tim
es, even to anticipate the future where it could be done, provides enough room f
or an efficient and flexible response to conditions and circumstances thus assur
ing the greatest benefits. In the language of Justice Cardozo: 'Needs that were
narrow or parochial in the past may be interwoven in the present with the well-b
eing of the nation. What is critical or urgent changes with the time.' The polic
e power is thus a dynamic agency, suitably vague and far from precisely defined,
rooted in the conception that men in organizing the state and imposing upon its
government limitations to safeguard constitutional rights did not intend thereb
y to enable an individual citizen or a group of citizens to obstruct unreasonabl
y the enactment of such salutary measures calculated to communal peace, safety,
good order, and welfare." 24
2. It was thus a heavy burden to be shouldered by petitioner, compounded by the
fact that the particular police power measure challenged was clearly intended to
promote public safety. It would be a rare occurrence indeed for this Court to i
nvalidate a legislative or executive act of that character. None has been called
to our attention, an indication of its being non-existent. The latest decision
in point, Edu v. Ericta, sustained the validity of the Reflector Law, 25 an enac
tment conceived with the same end in view. Calalang v. Williams found nothing ob
jectionable in a statute, the purpose of which was: "To promote safe transit upo
n, and. avoid obstruction on roads and streets designated as national roads * *
*. 26 As a matter of fact, the first law sought to be nullified after the effect
ivity of the 1935 Constitution, the National Defense Act, 27 with petitioner fai
ling in his quest, was likewise prompted by the imperative demands of public saf
ety.
3. The futility of petitioner's effort to nullify both the Letter of Instruction
and the implementing rules and regulations becomes even more apparent consideri
ng his failure to lay the necessary factual foundation to rebut the presumption
of validity. So it was held in Ermita-Malate Hotel and Motel Operators Associati
on, Inc. v. City Mayor of Manila. 28 The rationale was clearly set forth in an e
xcerpt from a decision of Justice Branders of the American Supreme Court, quoted
in the opinion: "The statute here questioned deals with a subject clearly withi
n the scope of the police power. We are asked to declare it void on the ground t
hat the specific method of regulation prescribed is unreasonable and hence depri
ves the plaintiff of due process of law. As underlying questions of fact may con
dition the constitutionality of legislation of this character, the presumption o
f constitutionality must prevail in the absence of some factual foundation of re
cord in overthrowing the statute. 29
4. Nor did the Solicitor General as he very well could, rely solely on such rebu
tted presumption of validity. As was pointed out in his Answer "The President ce
rtainly had in his possession the necessary statistical information and data at
the time he issued said letter of instructions, and such factual foundation cann
ot be defeated by petitioner's naked assertion that early warning devices 'are n
ot too vital to the prevention of nighttime vehicular accidents' because alleged
ly only 390 or 1.5 per cent of the supposed 26,000 motor vehicle accidents that
in 1976 involved rear-end collisions (p. 12 of petition). Petitioner's statistic
s is not backed up by demonstrable data on record. As aptly stated by this Honor
able Court: Further: "It admits of no doubt therefore that there being a presump
tion of validity, the necessity for evidence to rebut it is unavoidable, unless
the statute or ordinance is void on its face, which is not the case here"' * * *
. But even as g the verity of petitioner's statistics, is that not reason enough
to require the installation of early warning devices to prevent another 390 rea
r-end collisions that could mean the death of 390 or more Filipinos and the deat
hs that could likewise result from head-on or frontal collisions with stalled ve
hicles?" 30 It is quite manifest then that the issuance of such Letter of Instru
ction is encased in the armor of prior, careful study by the Executive Departmen
t. To set it aside for alleged repugnancy to the due process clause is to give s
anction to conjectural claims that exceeded even the broadest permissible limits
of a pleader's well known penchant for exaggeration.
5. The rather wild and fantastic nature of the charge of oppressiveness of this
Letter of Instruction was exposed in the Answer of the Solicitor General thus: "
Such early warning device requirement is not an expensive redundancy, nor oppres
sive, for car owners whose cars are already equipped with 1) blinking lights in
the fore and aft of said motor vehicles,' 2) "battery-powered blinking lights in
side motor vehicles," 3) "built-in reflectorized tapes on front and rear bumpers
of motor vehicles," or 4) "well-lighted two (2) petroleum lamps (the Kinke) * *
* because: Being universal among the signatory countries to the said 1968 Vienn
a Conventions, and visible even under adverse conditions at a distance of at lea
st 400 meters, any motorist from this country or from any part of the world, who
sees a reflectorized rectangular early seaming device installed on the roads, h
ighways or expressways, will conclude, without thinking, that somewhere along th
e travelled portion of that road, highway, or expressway, there is a motor vehic
le which is stationary, stalled or disabled which obstructs or endangers passing
traffic. On the other hand, a motorist who sees any of the aforementioned other
built in warning devices or the petroleum lamps will not immediately get adequa
te advance warning because he will still think what that blinking light is all a
bout. Is it an emergency vehicle? Is it a law enforcement car? Is it an ambulanc
e? Such confusion or uncertainty in the mind of the motorist will thus increase,
rather than decrease, the danger of collision. 31
6. Nor did the other extravagant assertions of constitutional deficiency go unre
futed in the Answer of the Solicitor General "There is nothing in the questioned
Letter of Instruction No. 229, as amended, or in Administrative Order No. 1, wh
ich requires or compels motor vehicle owners to purchase the early warning devic
e prescribed thereby. All that is required is for motor vehicle owners concerned
like petitioner, to equip their motor vehicles with a pair of this early warnin
g device in question, procuring or obtaining the same from whatever source. In f
act, with a little of industry and practical ingenuity, motor vehicle owners can
even personally make or produce this early warning device so long as the same s
ubstantially conforms with the specifications laid down in said letter of instru
ction and administrative order. Accordingly the early warning device requirement
can neither be oppressive, onerous, immoral, nor confiscatory, much less does i
t make manufacturers and dealers of said devices 'instant millionaires at the ex
pense of car owners' as petitioner so sweepingly concludes * * *. Petitioner's f
ear that with the early warning device requirement 'a more subtle racket may be
committed by those called upon to enforce it * * * is an unfounded speculation.
Besides, that unscrupulous officials may try to enforce said requirement in an u
nreasonable manner or to an unreasonable degree, does not render the same illega
l or immoral where, as in the instant case, the challenged Letter of Instruction
No. 229 and implementing order disclose none of the constitutional defects alle
ged against it. 32
7 It does appear clearly that petitioner's objection to this Letter of Instructi
on is not premised on lack of power, the justification for a finding of unconsti
tutionality, but on the pessimistic, not to say negative, view he entertains as
to its wisdom. That approach, it put it at its mildest, is distinguished, if tha
t is the appropriate word, by its unorthodoxy. It bears repeating "that this Cou
rt, in the language of Justice Laurel, 'does not pass upon questions of wisdom j
ustice or expediency of legislation.' As expressed by Justice Tuason: 'It is not
the province of the courts to supervise legislation and keep it within the boun
ds of propriety and common sense. That is primarily and exclusively a legislativ
e concern.' There can be no possible objection then to the observation of Justic
e Montemayor. 'As long as laws do not violate any Constitutional provision, the
Courts merely interpret and apply them regardless of whether or not they are wis
e or salutary. For they, according to Justice Labrador, 'are not supposed to ove
rride legitimate policy and * * * never inquire into the wisdom of the law.' It
is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commissio
n on Elections, that only congressional power or competence, not the wisdom of t
he action taken, may be the basis for declaring a statute invalid. This is as it
ought to be. The principle of separation of powers has in the main wisely alloc
ated the respective authority of each department and confined its jurisdiction t
o such a sphere. There would then be intrusion not allowable under the Constitut
ion if on a matter left to the discretion of a coordinate branch, the judiciary
would substitute its own. If there be adherence to the rule of law, as there oug
ht to be, the last offender should be courts of justice, to which rightly litiga
nts submit their controversy precisely to maintain unimpaired the supremacy of l
egal norms and prescriptions. The attack on the validity of the challenged provi
sion likewise insofar as there may be objections, even if valid and cogent on is
wisdom cannot be sustained. 33
8. The alleged infringement of the fundamental principle of non-delegation of le
gislative power is equally without any support well-settled legal doctrines. Had
petitioner taken the trouble to acquaint himself with authoritative pronounceme
nts from this Tribunal, he would not have the temerity to make such an assertion
. An exempt from the aforecited decision of Edu v. Ericta sheds light on the mat
ter: "To avoid the taint of unlawful delegation, there must be a standard, which
implies at the very least that the legislature itself determines matters of pri
nciple and lays down fundamental policy. Otherwise, the charge of complete abdic
ation may be hard to repel A standard thus defines legislative policy, marks its
maps out its boundaries and specifies the public agency to apply it. It indicat
es the circumstances under which the legislative command is to be effected. It i
s the criterion by which legislative purpose may be carried out. Thereafter, the
executive or administrative office designated may in pursuance of the above gui
delines promulgate supplemental rules and regulations. The standard may be eithe
r express or implied. If the former, the non-delegation objection is easily met.
The standard though does not have to be spelled out specifically. It could be i
mplied from the policy and purpose of the act considered as a whole. In the Refl
ector Law clearly, the legislative objective is public safety. What is sought to
be attained as in Calalang v. Williams is "safe transit upon the roads.' This i
s to adhere to the recognition given expression by Justice Laurel in a decision
announced not too long after the Constitution came into force and effect that th
e principle of non-delegation "has been made to adapt itself to the complexities
of modern governments, giving rise to the adoption, within certain limits, of t
he principle of "subordinate legislation" not only in the United States and Engl
and but in practically all modern governments.' He continued: 'Accordingly, with
the growing complexity of modern life, the multiplication of the subjects of go
vernmental regulation, and the increased difficulty of administering the laws, t
here is a constantly growing tendency toward the delegation of greater powers by
the legislature and toward the approval of the practice by the courts.' Consist
ency with the conceptual approach requires the reminder that what is delegated i
s authority non-legislative in character, the completeness of the statute when i
t leaves the hands of Congress being assumed." 34
9. The conclusion reached by this Court that this petition must be dismissed is
reinforced by this consideration. The petition itself quoted these two whereas c
lauses of the assailed Letter of Instruction: "[Whereas], the hazards posed by s
uch obstructions to traffic have been recognized by international bodies concern
ed with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and
the United Nations Organization (U.N.); [Whereas], the said Vionna Convention,
which was ratified by the Philippine Government under P.D. No. 207, recommended
the enactment of local legislation for the installation of road safety signs and
devices; * * * " 35 It cannot be disputed then that this Declaration of Princip
le found in the Constitution possesses relevance: "The Philippines * * * adopts
the generally accepted principles of international law as part of the law of the
land * * *." 36 The 1968 Vienna Convention on Road Signs and Signals is impress
ed with such a character. It is not for this country to repudiate a commitment t
o which it had pledged its word. The concept of Pacta sunt servanda stands in th
e way of such an attitude, which is, moreover, at war with the principle of inte
rnational morality.
10. That is about all that needs be said. The rather court reference to equal pr
otection did not even elicit any attempt on the Part of Petitioner to substantia
te in a manner clear, positive, and categorical why such a casual observation sh
ould be taken seriously. In no case is there a more appropriate occasion for ins
istence on what was referred to as "the general rule" in Santiago v. Far Eastern
Broadcasting Co., 37 namely, "that the constitutionality of a law wig not be co
nsidered unless the point is specially pleaded, insisted upon, and adequately ar
gued." 38 "Equal protection" is not a talismanic formula at the mere invocation
of which a party to a lawsuit can rightfully expect that success will crown his
efforts. The law is anything but that.
WHEREFORE, this petition is dismissed. The restraining order is lifted. This dec
ision is immediately executory. No costs.
Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De Cas
tro and Melencio-Herrera, concur.
Makasiar, J, reserves the right to file a separate opinion.
Aquino J., took no part.
Concepcion J., is on leave.
Castro, C.J., certifies that Justice Concepcion concurs in their decision.

Separate Opinions

TEEHANKEE, J., dissenting:

I dissent from the majority's peremptory dismissal of the petition and lifting o
f the restraining order issued on October 19, 1978 against the blanket enforceme
nt of the requirement that all motor vehicles be equipped with the so-called ear
ly warning device, without even hearing the parties in oral argument as generall
y required by the Court in original cases of far-reaching consequence such as th
e case at bar.
Lack of time presents my filing an extended dissent. I only wish to state that t
he petition advances grave and serious grounds of assailing "the rules and regul
ations issued by the Land Transportation Commission under Administrative Order N
o. 1 and Memorandum Circular No. 32 [which] do not reflect the real intent, nobl
e objectives and spirit of Letter of Instructions No. 229, as amended by Letter
of Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitr
ary, confiscatory, nay unconstitutional and contrary to the precepts of our comp
assionate New Society," because of the following considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of motor veh
icles with built-in and more effective and efficient E.W.D.'S such as "a) blinki
ng lights in the fore and aft of said motor vehicles, 1)) battery-powered blinki
ng lights inside motor vehicles, c) built-in reflectorized tapes on front and re
ar bumpers of motor vehicles....... to purchase the E.W.D. specified in the chal
lenged administrative order, whose effectivity and utility have yet to be demons
trated.
2. The public necessity for the challenged order has yet to be shown. No valid r
efutation has been made of petitioner's assertion that the "E.W.D.'s are not too
vital to the prevention of nighttime vehicular accidents. Statistics shows that
of the 26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 pe
r cent involved rear-end collisions," as to require the purchase and installatio
n of the questioned E.W.D. for almost 900,000 vehicles throughout the country;
3. The big financial burden to be imposed on all motorists is staggering, and pe
titioner's assertion that "as of 1975, there were at least 865,037 motor vehicle
s all over the country requiring E.W.D.'S and at the minimum price of 1156.00 pe
r set, this would mean a consumer outlay of P 48,451,872.00, or close to P 50 mi
llion for the questioned E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical and less bur
densome alternative road safety devices for stalled vehicles than the prescribed
E.W.D., such as the common petroleum lamps "kinke" which can be placed just as
effectively in front of stalled vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement on all vehicl
es. The respondents have not shown that they have availed of the powers and prer
ogatives vested in their offices such as ridding the country of dilapidated truc
ks and vehicles which are the main cause of the deplorable -highway accidents du
e to stoned vehicles, establishing an honest and foolproof system of examination
and licensing of motor vehicle drivers so as to ban the reckless and irresponsi
ble and a sustained education campaign to instill safe driving habits and attitu
des that can be carried out for much less than the P 50 million burden that woul
d be imposed by the challenged order.
I do feel that a greater "degree of receptivity and sympathy" could be extended
to the petitioner for his civic mindedness in having filed the present petition
g as capricious and unreasonable the "all pervading police power" of the State i
nstead of throwing the case out of court and leaving the wrong impression that t
he exercise of police power insofar as it may affect the life, liberty and prope
rty of any person is no longer subject to judicial inquiry.

# Separate Opinions
TEEHANKEE, J., dissenting:
I dissent from the majority's peremptory dismissal of the petition and lifting o
f the restraining order issued on October 19, 1978 against the blanket enforceme
nt of the requirement that all motor vehicles be equipped with the so-called ear
ly warning device, without even hearing the parties in oral argument as generall
y required by the Court in original cases of far-reaching consequence such as th
e case at bar.
Lack of time presents my filing an extended dissent. I only wish to state that t
he petition advances grave and serious grounds of assailing "the rules and regul
ations issued by the Land Transportation Commission under Administrative Order N
o. 1 and Memorandum Circular No. 32 [which] do not reflect the real intent, nobl
e objectives and spirit of Letter of Instructions No. 229, as amended by Letter
of Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitr
ary, confiscatory, nay unconstitutional and contrary to the precepts of our comp
assionate New Society," because of the following considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of motor veh
icles with built-in and more effective and efficient E.W.D.'S such as "a) blinki
ng lights in the fore and aft of said motor vehicles, 1)) battery-powered blinki
ng lights inside motor vehicles, c) built-in reflectorized tapes on front and re
ar bumpers of motor vehicles....... to purchase the E.W.D. specified in the chal
lenged administrative order, whose effectivity and utility have yet to be demons
trated.
2. The public necessity for the challenged order has yet to be shown. No valid r
efutation has been made of petitioner's assertion that the "E.W.D.'s are not too
vital to the prevention of nighttime vehicular accidents. Statistics shows that
of the 26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 pe
r cent involved rear-end collisions," as to require the purchase and installatio
n of the questioned E.W.D. for almost 900,000 vehicles throughout the country;
3. The big financial burden to be imposed on all motorists is staggering, and pe
titioner's assertion that "as of 1975, there were at least 865,037 motor vehicle
s all over the country requiring E.W.D.'S and at the minimum price of 1156.00 pe
r set, this would mean a consumer outlay of P 48,451,872.00, or close to P 50 mi
llion for the questioned E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical and less bur
densome alternative road safety devices for stalled vehicles than the prescribed
E.W.D., such as the common petroleum lamps "kinke" which can be placed just as
effectively in front of stalled vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement on all vehicl
es. The respondents have not shown that they have availed of the powers and prer
ogatives vested in their offices such as ridding the country of dilapidated truc
ks and vehicles which are the main cause of the deplorable -highway accidents du
e to stoned vehicles, establishing an honest and foolproof system of examination
and licensing of motor vehicle drivers so as to ban the reckless and irresponsi
ble and a sustained education campaign to instill safe driving habits and attitu
des that can be carried out for much less than the P 50 million burden that woul
d be imposed by the challenged order.
I do feel that a greater "degree of receptivity and sympathy" could be extended
to the petitioner for his civic mindedness in having filed the present petition
g as capricious and unreasonable the "all pervading police power" of the State i
nstead of throwing the case out of court and leaving the wrong impression that t
he exercise of police power insofar as it may affect the life, liberty and prope
rty of any person is no longer subject to judicial inquiry.
#Footnotes
1 Letter of Instruction No. 229 (1974) as amended by Letter of Instruction No. 4
79 (1976).
2 He was assisted by Assistant Solicitor Ruben E. Agpalo and Solicitor Amado D.
Aquino.
3 Petition, par. III.
4 Ibid, par. IV.
5 Ibid, par. V.
6 Ibid, par. VIII.
7 No. 716.
8 Petition, par. VII.
9 Ibid, par. VIII.
10 Ibid.
11 Ibid, par. IX.
12 Ibid, par. X.
13 Ibid, par. XI.
14 Ibid, par. X.
15 Ibid, par. XI.
16 Resolution of the Court dated October 19, 1978.
17 Answer, pars. 1-6.
18 Ibid, par. 8.
19 70 Phil. 726 (1940). The opinion was penned by Justice Laurel.
20 L-20387, January 31, 1968; 22 SCRA 424. The writer of this opinion is the pon
ente.
21 L-32096, October 24, 1970, 35 SCRA 481. The writer of this opinion was likewi
se the ponente.
22 Answer, par. 18 (a) and (b).
23 License Cases, 5 How. 504, 583.
24 35 SCRA 481, 487-488. There is no need to repeat where Calalang and Morfe are
reported. Primicias v. Fugoso is reported in 80 Phil. 71; Rubi v. Provincial Bo
ard, where the first quotation from Justice Malcolm came, in 39 Phil. 660, 708 (
1919); and Smith Bell and Co. v. Natividad, his other decision cited, in 40 Phil
. 136 (1919); Helvering v. Davis, with Justice Cardozo writing the opinion, in 3
01 US 619 (1937).
25 Republic Act No. 5715 (1969).
26 Commonwealth Act No. 548 (1940).
27 Cf. People v. Lagman 66 Phil. 13 (1938). Even earlier in United States v. Pom
peya, 31 Phil. 245 (1915), this Court, by virtue of the police power, held valid
a provision of the then Municipal Code requiring " able-bodied" males in the vi
cinity between ages to perform patrol duty not ex one day each week.
28 L-24693, July 31, 1967, 20 SCRA 849.
29 Ibid. 867. The excerpt came from O'Gorman and Young v. Hartford Fire Insuranc
e Co., 282 US 251, 328 (1931).
30 Answer, par. 18 (a). The excerpt came from Samson v. Mayor of Bacolod City, L
-28745; October 23, 1974; 60 SCRA 267; 270.
31 Ibid, par. 18 (c).
32 Ibid, par. 18 (d) and (e),
33 Morfe v. Mutuc, 22 SCRA 424, 450-451. The citation from Justice Laurel may be
traced to Angara v. Electoral Commission, 63 Phil. 139, 160 (1936); from Justic
e Laurel to People v. Carlos, 78 Phil. 535, 548 (1947); from Justice Montemayor
to Quintos v. Lacson, 97 Phil. 290, 293 (1955); and from Justice Labrador to Ich
ong v. Hernandez, 101 Phil. 1155, 1166 (1957). Chief Justice Concepcion's reiter
ation of the doctrine, paraphrased in the quoted opinion, was made by him in Gon
zales v. Commission on Elections, L-28196, November 9, 1967, 21 SCRA 774. Cf. Pr
ovince of Pangasinan v. Secretary of Public Works, 27861, October 3l,1969, 30 SC
RA 134.
34 SCRA 481, 497-498. The following cases were also cited. People v. Exconde, 10
1 Phil. 1125 (1957), and People v. Jolliffe, 105 Phil. 677 (1959).
35 Petition, par. III.
36 Article 11, Section 3 of the Constitution reads in full "The Philippines reno
unces war as an instrument of national policy, adopts the generally accepted pri
nciples of international law as part of the law of the land, and adheres to the
Policy of peace, equality, justice, freedom, cooperation, and amity with all nat
ions.
37 73 Phil. 408 (1941).
38 Ibid, 412.
Warren and Brandeis
Harvard Law Review.
Vol. IV December 15, 1890 No. 5
THE RIGHT TO PRIVACY[*] .
"It could be done only on principles of private justice, moral fitness,
and public convenience, which, when applied to a new subject, make common law wi
thout a precedent; much more when received and approved by usage." Willes, J., i
n Millar v. Taylor, 4 Burr. 2303, 2312

T
hat the individual shall have full protection in person and in property is a pri
nciple as old as the common law; but it has been found necessary from time to ti
me to define anew the exact nature and extent of such protection. Political, soc
ial, and economic changes entail the recognition of new rights, and the common l
aw, in its eternal youth, grows to meet the new demands of society. Thus, in ver
y early times, the law gave a remedy only for physical interference with life an
d property, for trespasses vi et armis. Then the "right to life" served only to
protect the subject from battery in its various forms; liberty meant freedom fro
m actual restraint; and the right to property secured to the individual his land
s and his cattle. Later, there came a recognition of man's spiritual nature, of
his feelings and his intellect. Gradually the scope of these legal rights broade
ned; and now the right to life has come to mean the right to enjoy life, -- the
right to be let alone; the right to liberty secures the exercise of extensive ci
vil privileges; and the term "property" has grown to comprise every form of poss
ession -- intangible, as well as tangible.
Thus, with the recognition of the legal value of sensations, the protection ag
ainst actual bodily injury was extended to prohibit mere attempts to do such inj
ury; that is, the putting another in fear of such injury. From the action of bat
tery grew that of assault.[1] Much later there came a qualified protection of th
e individual against offensive noises and odors, against dust and smoke, and exc
essive vibration. The law of nuisance was developed.[2] So regard for human emot
ions soon extended the scope of personal immunity beyond the body of the individ
ual. His reputation, the standing among his fellow-men, was considered, and the
law of slander and libel arose.[3] Man's family relations became a part of the l
egal conception of his life, and the alienation of a wife's affections was held
remediable.[4] Occasionally the law halted, as in its refusal to recognize the i
ntrusion by seduction upon the honor of the family. But even here the demands of
society were met. A mean fiction, the action per quod servitium amisit, was res
orted to, and by allowing damages for injury to the parents' feelings, an adequa
te remedy was ordinarily afforded.[5] Similar to the expansion of the right to l
ife was the growth of the legal conception of property. From corporeal property
arose the incorporeal rights issuing out of it; and then there opened the wide r
ealm of intangible property, in the products and processes of the mind,[6] as wo
rks of literature and art, [7] goodwill,[8] trade secrets, and trademarks.[9]
This development of the law was inevitable. The intense intellectual and emoti
onal life, and the heightening of sensations which came with the advance of civi
lization, made it clear to men that only a part of the pain, pleasure, and profi
t of life lay in physical things. Thoughts, emotions, and sensations demanded le
gal recognition, and the beautiful capacity for growth which characterizes the c
ommon law enabled the judges to afford the requisite protection, without the int
erposition of the legislature.
Recent inventions and business methods call attention to the next step which m
ust be taken for the protection of the person, and for securing to the individua
l what Judge Cooley calls the right "to be let alone" [10] Instantaneous photogr
aphs and newspaper enterprise have invaded the sacred precincts of private and d
omestic life; and numerous mechanical devices threaten to make good the predicti
on that "what is whispered in the closet shall be proclaimed from the house-tops
." For years there has been a feeling that the law must afford some remedy for t
he unauthorized circulation of portraits of private persons;[11] and the evil of
invasion of privacy by the newspapers, long keenly felt, has been but recently
discussed by an able writer.[12] The alleged facts of a somewhat notorious case
brought before an inferior tribunal in New York a few months ago,[13] directly i
nvolved the consideration of the right of circulating portraits; and the questio
n whether our law will recognize and protect the right to privacy in this and in
other respects must soon come before our courts for consideration.
Of the desirability -- indeed of the necessity -- of some such protection, the
re can, it is believed, be no doubt. The press is overstepping in every directio
n the obvious bounds of propriety and of decency. Gossip is no longer the resour
ce of the idle and of the vicious, but has become a trade, which is pursued with
 industry as well as effrontery. To satisfy a prurient taste the details of sexu
al relations are spread broadcast in the columns of the daily papers. To occupy
the indolent, column upon column is filled with idle gossip, which can only be p
rocured by intrusion upon the domestic circle. The intensity and complexity of l
ife, attendant upon advancing civilization, have rendered necessary some retreat
from the world, and man, under the refining influence of culture, has become mo
re sensitive to publicity, so that solitude and privacy have become more essenti
al to the individual; but modern enterprise and invention have, through invasion
s upon his privacy, subjected him to mental pain and distress, far greater than
could be inflicted by mere bodily injury. Nor is the harm wrought by such invasi
ons confined to the suffering of those who may be the subjects of journalistic o
r other enterprise. In this, as in other branches of commerce, the supply create
s the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of
more, and, in direct proportion to its circulation, results in the lowering of s
ocial standards and of morality. Even gossip apparently harmless, when widely an
d persistently circulated, is potent for evil. It both belittles and perverts. I
t belittles by inverting the relative importance of things, thus dwarfing the th
oughts and aspirations of a people. When personal gossip attains the dignity of
print, and crowds the space available for matters of real interest to the commun
ity, what wonder that the ignorant and thoughtless mistake its relative importan
ce. Easy of comprehension, appealing to that weak side of human nature which is
never wholly cast down by the misfortunes and frailties of our neighbors, no one
can be surprised that it usurps the place of interest in brains capable of othe
r things. Triviality destroys at once robustness of thought and delicacy of feel
ing. No enthusiasm can flourish, no generous impulse can survive under its bligh
ting influence.
It is our purpose to consider whether the existing law affords a principle whi
ch can properly be invoked to protect the privacy of the individual; and, if it
does, what the nature and extent of such protection is.
Owing to the nature of the instruments by which privacy is invaded, the injury
inflicted bears a superficial resemblance to the wrongs dealt with by the law o
f slander and of libel, while a legal remedy for such injury seems to involve th
e treatment of mere wounded feelings, as a substantive cause of action. The prin
ciple on which the law of defamation rests, covers, however, a radically differe
nt class of effects from those for which attention is now asked. It deals only w
ith damage to reputation, with the injury done to the individual in his external
relations to the community, by lowering him in the estimation of his fellows. T
he matter published of him, however widely circulated, and however unsuited to p
ublicity, must, in order to be actionable, have a direct tendency to injure him
in his intercourse with others, and even if in writing or in print, must subject
him to the hatred, ridicule, or contempt of his fellowmen, -- the effect of the
publication upon his estimate of himself and upon his own feelings nor forming
an essential element in the cause of action. In short, the wrongs and correlativ
e rights recognized by the law of slander and libel are in their nature material
rather than spiritual. That branch of the law simply extends the protection sur
rounding physical property to certain of the conditions necessary or helpful to
worldly prosperity. On the other hand, our law recognizes no principle upon whic
h compensation can be granted for mere injury to the feelings. However painful t
he mental effects upon another of an act, though purely wanton or even malicious
, yet if the act itself is otherwise lawful, the suffering inflicted is dannum a
bsque injuria. Injury of feelings may indeed be taken account of in ascertaining
the amount of damages when attending what is recognized as a legal injury;[14]
but our system, unlike the Roman law, does not afford a remedy even for mental s
uffering which results from mere contumely and insult, but from an intentional a
nd unwarranted violation of the "honor" of another.[15]
It is not however necessary, in order to sustain the view that the common law
recognizes and upholds a principle applicable to cases of invasion of privacy, t
o invoke the analogy, which is but superficial, to injuries sustained, either by
an attack upon reputation or by what the civilians called a violation of honor;
for the legal doctrines relating to infractions of what is ordinarily termed th
e common-law right to intellectual and artistic property are, it is believed, bu
t instances and applications of a general right to privacy, which properly under
stood afford a remedy for the evils under consideration.
The common law secures to each individual the right of determining, ordinarily
, to what extent his thoughts, sentiments, and emotions shall be communicated to
others.[16] Under our system of government, he can never be compelled to expres
s them (except when upon the witness stand); and even if he has chosen to give t
hem expression, he generally retains the power to fix the limits of the publicit
y which shall be given them. The existence of this right does not depend upon th
e particular method of expression adopted. It is immaterial whether it be by wor
d[17] or by signs,[18] in painting,[19] by sculpture, or in music.[20] Neither d
oes the existence of the right depend upon the nature or value of the thought or
emotions, nor upon the excellence of the means of expression.[21] The same prot
ection is accorded to a casual letter or an entry in a diary and to the most val
uable poem or essay, to a botch or daub and to a masterpiece. In every such case
the individual is entitled to decide whether that which is his shall be given t
o the public.[22] No other has the right to publish his productions in any form,
without his consent. This right is wholly independent of the material on which,
the thought, sentiment, or emotions is expressed. It may exist independently of
any corporeal being, as in words spoken, a song sung, a drama acted. Or if expr
essed on any material, as in a poem in writing, the author may have parted with
the paper, without forfeiting any proprietary right in the composition itself. T
he right is lost only when the author himself communicates his production to the
public, -- in other words, publishes it.[23] It is entirely independent of the
copyright laws, and their extension into the domain of art. The aim of those sta
tutes is to secure to the author, composer, or artist the entire profits arising
from publication; but the common-law protection enables him to control absolute
ly the act of publication, and in the exercise of his own discretion, to decide
whether there shall be any publication at all.[24] The statutory right is of no
value, unless there is a publication; the common-law right is lost as soon as th
ere is a publication.
What is the nature, the basis, of this right to prevent the publication of man
uscripts or works of art? It is stated to be the enforcement of a right of prope
rty;[25] and no difficulty arises in accepting this view, so long as we have onl
y to deal with the reproduction of literary and artistic compositions. They cert
ainly possess many of the attributes of ordinary property; they are transferable
; they have a value; and publication or reproduction is a use by which that valu
e is realized. But where the value of the production is found not in the right t
o take the profits arising from publication, but in the peace of mind or the rel
ief afforded by the ability to prevent any publication at all, it is difficult t
o regard the right as one of property, in the common acceptation of that term. A
man records in a letter to his son, or in his diary, that he did not dine with
his wife on a certain day. No one into whose hands those papers fall could publi
sh them to the world, even if possession of the documents had been obtained righ
tfully; and the prohibition would not be confined to the publication of a copy o
f the letter itself, or of the diary entry; the restraint extends also to a publ
ication of the contents. What is the thing which is protected? Surely, not the i
ntellectual act of recording the fact that the husband did not dine with his wif
e, but that fact itself. It is not the intellectual product, but the domestic oc
currence. A man writes a dozen letters to different people. No person would be p
ermitted to publish a list of the letters written. If the letters or the content
s of the diary were protected as literary compositions, the scope of the protect
ion afforded should be the same secured to a published writing under the copyrig
ht law. But the copyright law would not prevent an enumeration of the letters, o
r the publication of some of the facts contained therein. The copyright of a ser
ies of paintings or etchings would prevent a reproduction of the paintings as pi
ctures; but it would not prevent a publication of list or even a description of
them.[26] Yet in the famous case of Prince Albert v. Strange, the court held tha
t the common-law rule prohibited not merely the reproduction of the etchings whi
ch the plaintiff and Queen Victoria had made for their own pleasure, but also "t
he publishing (at least by printing or writing), though not by copy or resemblan
ce, a description of them, whether more or less limited or summary, whether in t
he form of a catalogue or otherwise."[27] Likewise, an unpublished collection of
news possessing no element of a literary nature is protected from privacy.[28]
That this protection cannot rest upon the right to literary or artistic proper
ty in any exact sense, appears the more clearly when the subject-matter for whic
h protection is invoked is not even in the form of intellectual property, but ha
s the attributes of ordinary tangible property. Suppose a man has a collection o
f gems or curiosities which he keeps private : it would hardly be contended that
any person could publish a catalogue of them, and yet the articles enumerated a
re certainly not intellectual property in the legal sense, any more than a colle
ction of stoves or of chairs.[29]
The belief that the idea of property in its narrow sense was the basis of the
protection of unpublished manuscripts led an able court to refuse, in several ca
ses, injunctions against the publication of private letters, on the ground that
"letters not possessing the attributes of literary compositions are not property
entitled to protection;" and that it was "evident the plaintiff could not have
considered the letters as of any value whatever as literary productions, for a l
etter cannot be considered of value to the author which he never would consent t
o have published."[30] But those decisions have not been followed,[31] and it ma
y not be considered settled that the protection afforded by the common law to th
e author of any writing is entirely independent of its pecuniary value, its intr
insic merits, or of any intention to publish the same and, of course, also, whol
ly independent of the material, if any, upon which, or the mode in which, the th
ought or sentiment was expressed.
Although the courts have asserted that they rested their decisions on the narr
ow grounds of protection to property, yet there are recognitions of a more liber
al doctrine. Thus in the case of Prince Albert v. Strange, already referred to,
the opinions of both the Vice-Chancellor and of the Lord Chancellor, on appeal,
show a more or less clearly defined perception of a principle broader than those
which were mainly discussed, and on which they both place their chief reliance.
Vice-Chancellor Knight Bruce referred to publishing of a man that he had "writt
en to particular persons or on particular subjects" as an instance of possibly i
njurious disclosures as to private matters, that the courts would in a proper ca
se prevent; yet it is difficult to perceive how, in such a case, any right of pr
ivacy, in the narrow sense, would be drawn in question, or why, if such a public
ation would be restrained when it threatened to expose the victim not merely to
sarcasm, but to ruin, it should not equally be enjoined, if it threatened to emb
itter his life. To deprive a man of the potential profits to be realized by publ
ishing a catalogue of his gems cannot per se be a wrong to him. The possibility
of future profits is not a right of property which the law ordinarily recognizes
; it must, therefore, be an infraction of other rights which constitutes the wro
ngful act, and that infraction is equally wrongful, whether its results are to f
orestall the profits that the individual himself might secure by giving the matt
er a publicity obnoxious to him, or to gain an advantage at the expense of his m
ental pain and suffering. If the fiction of property in a narrow sense must be p
reserved, it is still true that the end accomplished by the gossip-monger is att
ained by the use of that which is another's, the facts relating to his private l
ife, which he has seen fit to keep private. Lord Cottenham stated that a man "is
that which is exclusively his," and cited with approval the opinion of Lord Eld
on, as reported in a manuscript note of the case of Wyatt v. Wilson, in 1820, re
specting an engraving of George the Third during his illness, to the effect that
 "if one of the late king's physicians had kept a diary of what he heard and saw
, the court would not, in the king's lifetime, have permitted him to print and p
ublish it; "and Lord Cottenham declared, in respect to the acts of the defendant
s in the case before him, that "privacy is the right invaded." But if privacy is
once recognized as a right entitled to legal protection, the interposition of t
he courts cannot depend on the particular nature of the injuries resulting.
These considerations lead to the conclusion that the protection afforded to th
oughts, sentiments, and emotions, expressed through the medium of writing or of
the arts, so far as it consists in preventing publication, is merely an instance
of the enforcement of the more general right of the individual to be let alone.
It is like the right not be assaulted or beaten, the right not be imprisoned, t
he right not to be maliciously prosecuted, the right not to be defamed. In each
of these rights, as indeed in all other rights recognized by the law, there inhe
res the quality of being owned or possessed -- and (as that is the distinguishin
g attribute of property) there may some propriety in speaking of those rights as
property. But, obviously, they bear little resemblance to what is ordinarily co
mprehended under that term. The principle which protects personal writings and a
ll other personal productions, not against theft and physical appropriation, but
against publication in any form, is in reality not the principle of private pro
perty, but that of an inviolate personality.[32]
If we are correct in this conclusion, the existing law affords a principle fro
m which may be invoked to protect the privacy of the individual from invasion ei
ther by the too enterprising press, the photographer, or the possessor of any ot
her modern device for rewording or reproducing scenes or sounds. For the protect
ion afforded is not confined by the authorities to those cases where any particu
lar medium or form of expression has been adopted, not to products of the intell
ect. The same protection is afforded to emotions and sensations expressed in a m
usical composition or other work of art as to a literary composition; and words
spoken, a pantomime acted, a sonata performed, is no less entitled to protection
than if each had been reduced to writing. The circumstance that a thought or em
otion has been recorded in a permanent form renders its identification easier, a
nd hence may be important from the point of view of evidence, but it has no sign
ificance as a matter of substantive right. If, then, the decisions indicate a ge
neral right to privacy for thoughts, emotions, and sensations, these should rece
ive the same protection, whether expressed in writing, or in conduct, in convers
ation, in attitudes, or in facial expression.
It may be urged that a distinction should be taken between the deliberate expr
ession of thoughts and emotions in literary or artistic compositions and the cas
ual and often involuntary expression given to them in the ordinary conduct of li
fe. In other words, it may be contended that the protection afforded is granted
to the conscious products of labor, perhaps as an encouragement to effort.[33] T
his contention, however plausible, has, in fact, little to recommend it. If the
amount of labor involved be adopted as the test, we might well find that the eff
ort to conduct one's self properly in business and in domestic relations had bee
n far greater than that involved in painting a picture or writing a book; one wo
uld find that it was far easier to express lofty sentiments in a diary than in t
he conduct of a noble life. If the test of deliberateness of the act be adopted,
much casual correspondence which is now accorded full protection would be exclu
ded from the beneficent operation of existing rules. After the decisions denying
the distinction attempted to be made between those literary productions which i
t was intended to publish and those which it was not, all considerations of the
amount of labor involved, the degree of deliberation, the value of the product,
and the intention of publishing must be abandoned, and no basis is discerned upo
n which the right to restrain publication and reproduction of such so-called lit
erary and artistic works can be rested, except the right to privacy, as a part o
f the more general right to the immunity of the person, -- the right to one's pe
rsonality.
 It should be stated that, in some instances where protection has been afforded
against wrongful publication, the jurisdiction has been asserted, not on the gr
ound of property, or at least not wholly on that ground, but upon the ground of
an alleged breach of an implied contract or of a trust or confidence.
Thus, in Abernethy v. Hutchinson, 3 L. J. Ch. 209 (1825), where the plaintiff,
a distinguished surgeon, sought to restrain the publication in the "Lancet" of
unpublished lectures which he had delivered as St. Bartholomew's Hospital in Lon
don, Lord Eldon doubted whether there could be property in lectures which had no
t been reduced to writing, but granted the injunction on the ground of breach of
confidence, holding "that when persons were admitted as pupils or otherwise, to
hear these lectures, although they were orally delivered, and although the part
ies might go to the extent, if they were able to do so, of putting down the whol
e by means of short-hand, yet they could do that only for the purposes of their
own information, and could not publish, for profit, that which they had not obta
ined the right of selling."
In Prince Albert v. Strange, I McN. & G. 25 (1849), Lord Cottenham, on appeal,
while recognizing a right of property in the etchings which of itself would jus
tify the issuance of the injunction, stated, after discussing the evidence, that
he was bound to assume that the possession of the etching by the defendant had
"its foundation in a breach of trust, confidence, or contract," and that upon su
ch ground also the plaintiff's title to the injunction was fully sustained.
In Tuck v. Priester, 19 Q.B.D. 639 (1887), the plaintiffs were owners of a pic
ture, and employed the defendant to make a certain number of copies. He did so,
and made also a number of other copies for himself, and offered them for sale in
England at a lower price. Subsequently, the plaintiffs registered their copyrig
ht in the picture, and then brought suit for an injunction and damages. The Lord
s Justices differed as to the application of the copyright acts to the case, but
held unanimously that independently of those acts, the plaintiffs were entitled
to an injunction and damages for breach of contract.
In Pollard v. Photographic Co., 40 Ch. Div. 345 (1888), a photographer who had
taken a lady's photograph under the ordinary circumstances was restrained from
exhibiting it, and also from selling copies of it, on the ground that it was a b
reach of an implied term in the contract, and also that it was a breach of confi
dence. Mr. Justice North interjected in the argument of the plaintiff's counsel
the inquiry: "Do you dispute that if the negative likeness were taken on the sly
, the person who took it might exhibit copies?" and counsel for the plaintiff an
swered: "In that case there would be no trust or consideration to support a cont
ract." Later, the defendant's counsel argued that "a person has no property in h
is own features; short of doing what is libellous or otherwise illegal, there is
no restriction on the photographer's using his negative." But the court, while
expressly finding a breach of contract and of trust sufficient to justify its in
terposition, still seems to have felt the necessity of resting the decision also
upon a right of property,[34] in order to bring it within the line of those cas
es which were relied upon as precedents.[35]
This process of implying a term in a contract, or of implying a trust (particu
larly where a contract is written, and where these is no established usage or cu
stom), is nothing more nor less than a judicial declaration that public morality
, private justice, and general convenience demand the recognition of such a rule
, and that the publication under similar circumstances would be considered an in
tolerable abuse. So long as these circumstances happen to present a contract upo
n which such a term can be engrafted by the judicial mind, or to supply relation
s upon which a trust or confidence can be erected, there may be no objection to
working out the desired protection though the doctrines of contract or of trust.
But the court can hardly stop there. The narrower doctrine may have satisfied t
he demands of society at a time when the abuse to be guarded against could rarel
y have arisen without violating a contract or a special confidence; but now that
modern devices afford abundant opportunities for the perpetration of such wrong
s without any participation by the injured party, the protection granted by the
law must be placed upon a broader foundation. While, for instance, the state of
the photographic art was such that one's picture could seldom be taken without h
is consciously "sitting" for the purpose, the law of contract or of trust might
afford the prudent man sufficient safeguards against the improper circulation of
his portrait; but since the latest advances in photographic art have rendered i
t possible to take pictures surreptitiously, the doctrines of contract and of tr
ust are inadequate to support the required protection, and the law of tort must
be resorted to. The right of property in its widest sense, including all possess
ion, including all rights and privileges, and hence embracing the right to an in
violate personality, affords alone that broad basis upon which the protection wh
ich the individual demands can be rested.
Thus, the courts, in searching for some principle upon which the publication o
f private letters could be enjoined, naturally came upon the ideas of a breach o
f confidence, and of an implied contract; but it required little consideration t
o discern that this doctrine could not afford all the protection required, since
it would not support the court in granting a remedy against a stranger; and so
the theory of property in the contents of letters was adopted.[36] Indeed, it is
difficult to conceive on what theory of the law the casual recipient of a lette
r, who proceeds to publish it, is guilty of a breach of contract, express or imp
lied, or of any breach of trust, in the ordinary acceptation of that term. Suppo
se a letter has been addressed to him without his solicitation. He opens it, and
reads. Surely, he has not made any contract; he has not accepted any trust. He
cannot, by opening and reading the letter, have come under any obligation save w
hat the law declares; and, however expressed, that obligation is simply to obser
ve the legal right of the sender, whatever it may be, and whether it be called h
is right or property in the contents of the letter, or his right to privacy.[37]
A similar groping for the principle upon which a wrongful publication can be e
njoined is found in the law of trade secrets. There, injunctions have generally
been granted on the theory of a breach of contract, or of an abuse of confidence
.[38] It would, of course, rarely happen that any one would be in possession of
a secret unless confidence had been reposed in him. But can it be supposed that
the court would hesitate to grant relief against one who had obtained his knowle
dge by an ordinary trespass, -- for instance, by wrongfully looking into a book
in which the secret was recorded, or by eavesdropping? Indeed, in Yovatt v. Winy
ard, I J.&W. 394 (1820), where an injunction was granted against making any use
or of communicating certain recipes for veterinary medicine, it appeared that th
e defendant while in the plaintiff's employ, had surreptitiously got access to h
is book of recipes, and copied them. Lord Eldon "granted the injunction, upon th
e ground of there having been a breach of trust and confidence;" but it would se
em difficult to draw any sound legal distinction between such a case and one whe
re a mere stranger wrongfully obtained access to the book.[39]
We must therefore conclude that the rights, so protected, whatever their exact
nature, are not rights arising from contract or from special trust, but are rig
hts as against the world; and, as above stated, the principle which has been app
lied to protect these rights is in reality not the principle of private property
, unless that word be used in an extended and unusual sense. The principle which
protects personal writings and any other productions of the intellect of or the
emotions, is the right to privacy, and the law has no new principle to formulat
e when it extends this protection to the personal appearance, sayings, acts, and
to personal relation, domestic or otherwise.[40]
If the invasion of privacy constitutes a legal injuria, the elements for deman
ding redress exist, since already the value of mental suffering, caused by an ac
t wrongful in itself, is recognized as a basis for compensation.
The right of one who has remained a private individual, to prevent his public
portraiture, presents the simplest case for such extension; the right to protect
one's self from pen portraiture, from a discussion by the press of one's privat
e affairs, would be a more important and far-reaching one. If casual and unimpor
tant statements in a letter, if handiwork, however inartistic and valueless, if
possessions of all sorts are protected not only against reproduction, but also a
gainst description and enumeration, how much more should the acts and sayings of
a man in his social and domestic relations be guarded from ruthless publicity.
If you may not reproduce a woman's face photographically without her consent, ho
w much less should be tolerated the reproduction of her face, her form, and her
actions, by graphic descriptions colored to suit a gross and depraved imaginatio
n.
The right to privacy, limited as such right must necessarily be, has already f
ound expression in the law of France.[41]
It remains to consider what are the limitations of this right to privacy, and
what remedies may be granted for the enforcement of the right. To determine in a
dvance of experience the exact line at which the dignity and convenience of the
individual must yield to the demands of the public welfare or of private justice
would be a difficult task; but the more general rules are furnished by the lega
l analogies already developed in the law of slander and libel, and in the law of
literary and artistic property.
1. The right to privacy does not prohibit any publication of matter which is o
f public or general interest. In determining the scope of this rule, aid would b
e afforded by the analogy, in the law of libel and slander, of cases which deal
with the qualified privilege of comment and criticism on matters of public and g
eneral interest.[42] There are of course difficulties in applying such a rule; b
ut they are inherent in the subject-matter, and are certainly no greater than th
ose which exist in many other branches of the law, -- for instance, in that larg
e class of cases in which the reasonableness or unreasonableness of an act is ma
de the test of liability. The design of the law must be to protect those persons
with whose affairs the community has no legitimate concern, from being dragged
into an undesirable and undesired publicity and to protect all persons, whatsoev
er; their position or station, from having matters which they may properly prefe
r to keep private, made public against their will. It is the unwarranted invasio
n of individual privacy which is reprehended, and to be, so far as possible, pre
vented. The distinction, however, noted in the above statement is obvious and fu
ndamental. There are persons who may reasonably claim as a right, protection fro
m the notoriety entailed by being made the victims of journalistic enterprise. T
here are others who, in varying degrees, have renounced the right to live their
lives screened from public observation. Matters which men of the first class may
justly contend, concern themselves alone, may in those of the second be the sub
ject of legitimate interest to their fellow-citizens. Peculiarities of manner an
d person, which in the ordinary individual should be free from comment, may acqu
ire a public importance, if found in a candidate for public office. Some further
discrimination is necessary, therefore, than to class facts or deeds as public
or private according to a standard to be applied to the fact or deed per se. To
publish of a modest and retiring individual that he suffers from an impediment i
n his speech or that he cannot spell correctly, is an unwarranted, if not an une
xampled, infringement of his rights, while to state and comment on the same char
acteristics found in a would-be congressman could not be regarded as beyond the
pale of propriety.
The general object in view is to protect the privacy of private life, and to w
hatever degree and in whatever connection a man's life has ceased to be private,
before the publication under consideration has been made, to that extent the pr
otection is likely to be withdrawn.[43] Since, then, the propriety of publishing
the very same facts may depend wholly upon the person concerning whom they are
published, no fixed formula can be used to prohibit obnoxious publications. Any
rule of liability adopted must have in it an elasticity which shall take account
of the varying circumstances of each case, -- a necessity which unfortunately r
enders such a doctrine not only more difficult of application, but also to a cer
tain extent uncertain in its operation and easily rendered abortive. Besides, it
is only the more flagrant breaches of decency and propriety that could in pract
ice be reached, and it is not perhaps desirable even to attempt to repress every
thing which the nicest taste and keenest sense of the respect due to private lif
e would condemn.
In general, then, the matters of which the publication should be repressed may
be described as those which concern the private life, habits, acts, and relatio
ns of an individual, and have no legitimate connection with his fitness for a pu
blic office which he seeks or for which he is suggested, or for any public or qu
asi public position which he seeks or for which he is suggested, and have no leg
itimate relation to or bearing upon any act done by him in a public or quasi pub
lic capacity. The foregoing is not designed as a wholly accurate or exhaustive d
efinition, since that which must ultimately in a vast number of cases become a q
uestion of individual judgment and opinion is incapable of such definition; but
it is an attempt to indicate broadly the class of matters referred to. Some thin
gs all men alike are entitled to keep from popular curiosity, whether in public
life or not, while others are only private because the persons concerned have no
t assumed a position which makes their doings legitimate matters of public inves
tigation.[44]
2. The right to privacy does not prohibit the communication of any matter, tho
ugh in its nature private, when the publication is made under circumstances whic
h would render it a privileged communication according to the law of slander and
libel. Under this rule, the right to privacy is not invaded by any publication
made in a court of justice, in legislative bodies, or the committees of those bo
dies; in municipal assemblies, or the committees of such assemblies, or practica
lly by any communication in any other public body, municipal or parochial, or in
any body quasi public, like the large voluntary associations formed for almost
every purpose of benevolence, business, or other general interest; and (at least
in many jurisdictions) reports of any such proceedings would in some measure be
accorded a like privilege.[45] Nor would the rule prohibit any publication made
by one in the discharge of some public or private duty, whether legal or moral,
or in conduct of one's own affairs, in matters where his own interest is concer
ned.[46]
3. The law would probably not grant any redress for the invasion of privacy by
oral publication in the absence of special damage. The same reasons exist for d
istinguishing between oral and written publications of private matters, as is af
forded in the law of defamation by the restricted liability for slander as compa
red with the liability for libel.[47] The injury resulting from such oral commun
ications would ordinarily be so trifling that the law might well, in the interes
t of free speech, disregard it altogether.[48]
4. The right to privacy ceases upon the publication of the facts by the indivi
dual, or with his consent.
This is but another application of the rule which has become familiar in the l
aw of literary and artistic property. The cases there decided establish also wha
t should be deemed a publication, -- the important principle in this connection
being that a private communication of circulation for a restricted purpose is no
t a publication within the meaning of the law.[49]
5. The truth of the matter published does not afford a defence. Obviously this
 branch of the law should have no concern with the truth or falsehood of the mat
ters published. It is not for injury to the individual's character that redress
or prevention is sought, but for injury to the right of privacy. For the former,
the law of slander and libel provides perhaps a sufficient safeguard. The latte
r implies the right not merely to prevent inaccurate portrayal of private life,
but to prevent its being depicted at all.[50]
6. The absence of "malice" in the publisher does not afford a defence. Persona
l ill-will is not an ingredient of the offence, any more than in an ordinary cas
e of trespass to person or to property. Such malice is never necessary to be sho
wn in an action for libel or slander at common law, except in rebuttal of some d
efence, e.g., that the occasion rendered the communication privileged, or, under
the statutes in this State and elsewhere, that the statement complained of was
true. The invasion of the privacy that is to be protected is equally complete an
d equally injurious, whether the motives by which the speaker or writer was actu
ated are taken by themselves, culpable or not; just as the damage to character,
and to some extent the tendency to provoke a breach of the peace, is equally the
result of defamation without regard to motives leading to its publication. View
ed as a wrong to the individual, this rule is the same pervading the whole law o
f torts, by which one is held responsible for his intentional acts, even thought
they care committed with no sinister intent; and viewed as a wrong to society,
it is the same principle adopted in a large category of statutory offences.
The remedies for an invasion of the right of privacy are also suggested by tho
se administered in the law of defamation, and in the law of literary and artisti
c property, namely: --
1. An action of tort for damages in all cases.[51] Even in the absence of spec
ial damages, substantial compensation could be allowed for injury to feelings as
in the action of slander and libel.
2. An injunction, in perhaps a very limited class of cases.[52]
It would doubtless be desirable that the privacy of the individual should rece
ive the added protection of the criminal law, but for this, legislation would be
required.[53] Perhaps it would be deemed proper to bring the criminal liability
for such publication within narrower limits; but that the community has an inte
rest in preventing such invasions of privacy, sufficiently strong to justify the
introduction of such a remedy, cannot be doubted. Still, the protection of soci
ety must come mainly through a recognition of the rights of the individual. Each
man is responsible for his own acts and omissions only. If he condones what he
reprobates, with a weapon at hand equal to his defence, he is responsible for th
e results. If he resists, public opinion will rally to his support. Has he then
such a weapon? It is believed that the common law provides him with one, forged
in the slow fire of the centuries, and to-day fitly tempered to his hand. The co
mmon law has always recognized a man's house as his castle, impregnable, often,
even to his own officers engaged in the execution of its command. Shall the cour
ts thus close the front entrance to constituted authority, and open wide the bac
k door to idle or prurient curiosity?
Samuel D. Warren,
Louis D. Brandeis.
BOSTON, December, 1890.
Olmstead v. United States, 277 U.S. 438 (1928)
Olmstead v. United States
Nos. 493, 532 and 533
Argued February 20, 21, 1928
Decided June 4, 1928
277 U.S. 438
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE NINTH CIRCUIT
Syllabus
1. Use in evidence in a criminal trial in a federal court of an incriminating te
lephone conversation voluntarily conducted by the accused and secretly overheard
from a tapped wire by a government officer does not compel the accused to be a
witness against himself in violation of the Fifth Amendment. P. 277 U. S. 462.
2. Evidence of a conspiracy to violate the Prohibition Act was obtained by gover
nment officers by secretly tapping the lines of a telephone company connected wi
th the chief office and some of the residences of the conspirators, and thus cla
ndestinely overhearing and recording their telephonic conversations concerning t
he conspiracy and in aid of its execution. The tapping connections were made in
the basement of a large office building and on public streets, and no trespass w
as committed upon any property of the defendants. Held, that the obtaining of th
e evidence and its use at the trial did not violate the Fourth Amendment. Pp. 45
7- 277 U. S. 466.
3. The principle of liberal construction applied to the Amendment to effect its
purpose in the interest of liberty will not justify enlarging it beyond the poss
ible practical meaning of "persons, houses, papers, and effects," or so applying
"searches and seizures" as to forbid hearing or sight. P. 277 U. S. 465.
4. The policy of protecting the secrecy of telephone messages by making them, wh
en intercepted, inadmissible as evidence in federal criminal trials may be adopt
ed by Congress through legislation, but it is not for the courts to adopt it by
attributing an enlarged and unusual meaning to the Fourth Amendment. P. 277 U. S
. 465.
5. A provision in an order granting certiorari limiting the review to a single s
pecific question does not deprive the Court of jurisdiction to decide other ques
tions presented by the record. P. 277 U. S. 466.
6. The common law of evidence having prevailed in the State of Washington since
a time antedating her transformation from a
Page 277 U. S. 439
Territory to a State, those rule apply in the trials of criminal cases in the fe
deral courts sitting in that State. P. 277 U. S. 466.
7. Under the common law, the admissibility of evidence is not affected by the fa
ct of its having been obtained illegally. P. 277 U. S. 467.
8. The rule excluding from the federal Courts evidence of crime procured by gove
rnment officers by methods forbidden by the Fourth and Fifth Amendments is an ex
ception to the common law rule. Id.
9. Without the sanction of an Act of Congress, federal courts have no discretion
 to exclude evidence, the admission of which is not unconstitutional, because it
was unethically procured. P. 277 U. S. 468.
10. The statute of Washington, adopted in 1909, making the interception of telep
hone messages a misdemeanor cannot affect the rules of evidence applicable in fe
deral courts in criminal cases. Id.
19 F. (2d) 842, 848, 850, affirmed.
CERTIORARI, 276 U.S. 609, to judgments of the Circuit Court of Appeals affirming
convictions of conspiracy to violate the Prohibition Act. See 5 F.2d 712; 7 F.2
d 756, 760. The order granting certiorari confined the hearing to the question w
hether the use in evidence of private telephone conversations, intercepted by me
ans of wiretapping, violated the Fourth and Fifth Amendments.
Page 277 U. S. 455
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
These cases are here by certiorari from the Circuit Court of Appeals for the Nin
th Circuit. 19 F.2d 842 and 850. The petition in No. 493 was filed August 30, 19
27; in Nos. 532 and 533, September 9, 1927. They were granted with the distinct
limitation that the hearing should be confined to the single question whether th
e use of evidence of private telephone conversations between the defendants and
others, intercepted by means of wiretapping amounted to a violation of the Fourt
h and Fifth Amendments.
The petitioners were convicted in the District Court for the Western District of
Washington of a conspiracy to violate the National Prohibition Act by unlawfull
y possessing, transporting and importing intoxicating liquors and maintaining nu
isances, and by selling intoxicating liquors. Seventy-two others in addition to
the petitioners were indicted. Some were not apprehended, some were acquitted, a
nd others pleaded guilty.
The evidence in the records discloses a conspiracy of amazing magnitude to impor
t, possess and sell liquor unlawfully.
Page 277 U. S. 456
It involved the employment of not less than fifty persons, of two seagoing vesse
ls for the transportation of liquor to British Columbia, of smaller vessels for
coastwise transportation to the State of Washington, the purchase and use of a r
anch beyond the suburban limits of Seattle, with a large underground cache for s
torage and a number of smaller caches in that city, the maintenance of a central
office manned with operators, the employment of executives, salesmen, deliverym
en, dispatchers, scouts, bookkeepers, collectors and an attorney. In a bad month
, sales amounted to $176,000; the aggregate for a year must have exceeded two mi
llions of dollars.
Olmstead was the leading conspirator and the general manager of the business. He
made a contribution of $10,000 to the capital; eleven others contributed $1,000
each. The profits were divided one-half to Olmstead and the remainder to the ot
her eleven. Of the several offices in Seattle, the chief one was in a large offi
ce building. In this there were three telephones on three different lines. There
were telephones in an office of the manager in his own home, at the homes of hi
s associates, and at other places in the city. Communication was had frequently
with Vancouver, British Columbia. Times were fixed for the deliveries of the "st
uff," to places along Puget Sound near Seattle, and from there the liquor was re
moved and deposited in the caches already referred to
One of the chief men was always on duty at the main office to receive orders by
telephones and to direct their filling by a corps of men stationed in another ro
om -- the " bull pen." The call numbers of the telephones were given to those kn
own to be likely customers. At times, the sales amounted to 200 cases of liquor
per day.
The information which led to the discovery of the conspiracy and its nature and
extent was largely obtained by intercepting messages on the telephones of the co
nspirators by four federal prohibition officers. Small
Page 277 U. S. 457
wires were inserted along the ordinary telephone wires from the residences of fo
ur of the petitioners and those leading from the chief office. The insertions we
re made without trespass upon any property of the defendants. They were made in
the basement of the large office building. The taps from house lines were made i
n the streets near the houses.
The gathering of evidence continued for many months. Conversations of the conspi
rators, of which refreshing stenographic notes were currently made, were testifi
ed to by the government witnesses. They revealed the large business transactions
of the partners and their subordinates. Men at the wires heard the orders given
for liquor by customers and the acceptances; they became auditors of the conver
sations between the partners. All this disclosed the conspiracy charged in the i
ndictment. Many of the intercepted conversations were not merely reports, but pa
rts of the criminal acts. The evidence also disclosed the difficulties to which
the conspirators were subjected, the reported news of the capture of vessels, th
e arrest of their men and the seizure of cases of liquor in garages and other pl
aces. It showed the dealing by Olmstead, the chief conspirator, with members of
the Seattle police, the messages to them which secured the release of arrested m
embers of the conspiracy, and also direct promises to officers of payments as so
on as opportunity offered.
The Fourth Amendment provides --
"The right of the people to be secure in their persons, houses, papers, and effe
cts against unreasonable searches and seizures shall not be violated, and no war
rants shall issue but upon probable cause, supported by oath or affirmation and
particularly describing the place to be searched and the persons or things to be
seized."
And the Fifth: "No person . . . shall be compelled, in any criminal case, to be
a witness against himself."
Page 277 U. S. 458
It will be helpful to consider the chief cases in this Court which bear upon the
construction of these Amendments.
Boyd v. United States, 116 U. S. 616, was an information filed by the District A
ttorney in the federal court in a cause of seizure and forfeiture against thirty
-five cases of plate glass, which charged that the owner and importer, with inte
nt to defraud the revenue, made an entry of the imported merchandise by means of
a fraudulent or false invoice. It became important to show the quantity and val
ue of glass contained in twenty-nine cases previously imported. The fifth sectio
n of the Act of June 22, 1874, provided that, in cases not criminal under the re
venue laws, the United States Attorney, whenever he thought an invoice belonging
to the defendant would tend to prove any allegation made by the United States,
might, by a written motion describing the invoice and setting forth the allegati
on which he expected to prove, secure a notice from the court to the defendant t
o produce the invoice, and, if the defendant refused to produce it, the allegati
ons stated in the motion should be taken as confessed, but if produced, the Unit
ed States Attorney should be permitted, under the direction of the court, to mak
e an examination of the invoice, and might offer the same in evidence. This Act
had succeeded the Act of 1867, which provided that, in such cases, the District
Judge, on affidavit of any person interested, might issue a warrant to the marsh
al to enter the premises where the invoice was and take possession of it and hol
d it subject to the order of the judge. This had been preceded by the Act of 186
3 of a similar tenor, except that it directed the warrant to the collector, inst
ead of the marshal. The United States Attorney followed the Act of 1874 and comp
elled the production of the invoice.
The court held the Act of 1874 repugnant to the Fourth and Fifth Amendments. As
to the Fourth Amendment, Justice Bradley said (page 116 U. S. 621):
Page 277 U. S. 459
"But, in regard to the Fourth Amendment, it is contended that, whatever might ha
ve been alleged against the constitutionality of the acts of 1863 and 1867, that
of 1874, under which the order in the present case was made, is free from const
itutional objection because it does not authorize the search and seizure of book
s and papers, but only requires the defendant or claimant to produce them. That
is so; but it declares that, if he does not produce them, the allegations which
it is affirmed they will prove shall be taken as confessed. This is tantamount t
o compelling their production, for the prosecuting attorney will always be sure
to state the evidence expected to be derived from them as strongly as the case w
ill admit of. It is true that certain aggravating incidents of actual search and
seizure, such as forcible entry into a man's house and searching amongst his pa
pers, are wanting, and, to this extent, the proceeding under the Act of 1874 is
a mitigation of that which was authorized by the former acts; but it accomplishe
s the substantial object of those acts in forcing from a party evidence against
himself. It is our opinion, therefore, that a compulsory production of a man's p
rivate papers to establish a criminal charge against him, or to forfeit his prop
erty, is within the scope of the Fourth Amendment to the Constitution in all cas
es in which a search and seizure would be, because it is a material ingredient,
and effects the sole object and purpose of search and seizure."
Concurring, Mr. Justice Miller and Chief Justice Waite said that they did not th
ink the machinery used to get this evidence amounted to a search and seizure, bu
t they agreed that the Fifth Amendment had been violated.
The statute provided an official demand for the production of a paper or documen
t by the defendant for official search and use as evidence on penalty that, by r
efusal, he should be conclusively held to admit the incriminating
Page 277 U. S. 460
character of the document as charged. It was certainly no straining of the langu
age to construe the search and seizure under the Fourth Amendment to include suc
h official procedure.
The next case, and perhaps the most important, is Weeks v. United States, 232 U.
S. 383 -- a conviction for using the mails to transmit coupons or tickets in a
lottery enterprise. The defendant was arrested by a police officer without a war
rant. After his arrest, other police officers and the United States marshal went
to his house, got the key from a neighbor, entered the defendant's room and sea
rched it, and took possession of various papers and articles. Neither the marsha
l nor the police officers had a search warrant. The defendant filed a petition i
n court asking the return of all his property. The court ordered the return of e
verything not pertinent to the charge, but denied return of relevant evidence. A
fter the jury was sworn, the defendant again made objection, and, on introductio
n of the papers, contended that the search without warrant was a violation of th
e Fourth and Fifth Amendments, and they were therefore inadmissible. This court
held that such taking of papers by an official of the United States, acting unde
r color of his office, was in violation of the constitutional rights of the defe
ndant, and, upon making seasonable application, he was entitled to have them res
tored, and that, by permitting their use upon the trial, the trial court erred.
The opinion cited with approval language of Mr. Justice Field in Ex parte Jackso
n, 96 U. S. 727, 96 U. S. 733, saying that the Fourth Amendment, as a principle
of protection, was applicable to sealed letters and packages in the mail, and th
at, consistently with it, such matter could only be opened and examined upon war
rants issued on oath or affirmation particularly describing the thing to be seiz
ed.
In Silverthorne Lumber Company v. United States, 251 U. S. 385, the defendants w
ere arrested at their homes and
Page 277 U. S. 461
detained in custody. While so detained, representatives of the Government, witho
ut authority, went to the office of their company and seized all the books, pape
rs and documents found there. An application for return of the things was oppose
d by the District Attorney, who produced a subpoena for certain documents relati
ng to the charge in the indictment then on file. The court said:
"Thus, the case is not that of knowledge acquired through the wrongful act of a
stranger, but it must be assumed that the Government planned, or at all events r
atified, the whole performance."
And it held that the illegal character of the original seizure characterized the
entire proceeding, and, under the Weeks case, the seized papers must be restore
d.
In Amos v. United States, 255 U. S. 313, the defendant was convicted of conceali
ng whiskey on which the tax had not been paid. At the trial, he presented a peti
tion asking that private property seized in a search of his house and store "wit
hin his curtilage" without warrant should be returned. This was denied. A woman
who claimed to be his wife was told by the revenue officers that they had come t
o search the premises for violation of the revenue law. She opened the door; the
y entered, and found whiskey. Further searches in the house disclosed more. It w
as held that this action constituted a violation of the Fourth Amendment, and th
at the denial of the motion to restore the whiskey and to exclude the testimony
was error.
In Gouled v. The United States, 255 U. S. 298, the facts were these: Gouled and
two others were charged with conspiracy to defraud the United States. One pleade
d guilty, and another was acquitted. Gouled prosecuted error. The matter was pre
sented here on questions propounded by the lower court. The first related to the
admission in evidence of a paper surreptitiously taken from the office of the d
efendant by one acting under the direction
Page 277 U. S. 462
of an officer of the Intelligence Department of the Army of the United States. G
ouled was suspected of the crime. A private in the U.S. Army, pretending to make
a friendly call on him, gained admission to his office and, in his absence, wit
hout warrant of any character, seized and carried away several documents. One of
these belonging to Gouled, was delivered to the United States Attorney, and by
him introduced in evidence. When produced, it was a surprise to the defendant. H
e had had no opportunity to make a previous motion to secure a return of it. The
paper had no pecuniary value, but was relevant to the issue made on the trial.
Admission of the paper was considered a violation of the Fourth Amendment.
Agnello v. United States, 269 U. S. 20, held that the Fourth and Fifth Amendment
s were violated by admission in evidence of contraband narcotics found in defend
ant's house, several blocks distant from the place of arrest, after his arrest,
and seized there without a warrant. Under such circumstances, the seizure could
not be justified as incidental to the arrest.
There is no room in the present case for applying the Fifth Amendment unless the
Fourth Amendment was first violated. There was no evidence of compulsion to ind
uce the defendants to talk over their many telephones, They were continually and
voluntarily transacting business without knowledge of the interception. Our con
sideration must be confined to the Fourth Amendment.
The striking outcome of the Weeks case and those which followed it was the sweep
ing declaration that the Fourth Amendment, although not referring to or limiting
the use of evidence in courts, really forbade its introduction if obtained by g
overnment officers through a violation of the Amendment. Theretofore, many had s
upposed that, under the ordinary common law rules, if the tendered evidence was
pertinent, the method of obtaining it was
Page 277 U. S. 463
unimportant. This was held by the Supreme Judicial Court of Massachusetts in Com
monwealth v. Dana, 2 Metcalf, 329, 337. There it was ruled that the only remedy
open to a defendant whose rights under a state constitutional equivalent of the
Fourth Amendment had been invaded was by suit and judgment for damages, as Lord
Camden held in Entick v. Carrington, 19 Howell State Trials, 1029. Mr. Justice B
radley made effective use of this case in Boyd v. United States. But in the Week
s case, and those which followed, this Court decided with great emphasis, and es
tablished as the law for the federal courts, that the protection of the Fourth A
mendment would be much impaired unless it was held that not only was the officia
l violator of the rights under the Amendment subject to action at the suit of th
e injured defendant, but also that the evidence thereby obtained could not be re
ceived.
The well known historical purpose of the Fourth Amendment, directed against gene
ral warrants and writs of assistance, was to prevent the use of governmental for
ce to search a man's house, his person, his papers and his effects, and to preve
nt their seizure against his will. This phase of the misuse of governmental powe
r of compulsion is the emphasis of the opinion of the Court in the Boyd case. Th
is appears too in the Weeks case, in the Silverthorne case, and in the Amos case
.
Gouled v. United States carried the inhibition against unreasonable searches and
seizures to the extreme limit. Its authority is not to be enlarged by implicati
on, and must be confined to the precise state of facts disclosed by the record.
A representative of the Intelligence Department of the Army, having by stealth o
btained admission to the defendant's office, seized and carried away certain pri
vate papers valuable for evidential purposes. This was held an unreasonable sear
ch and seizure within the Fourth Amendment. A stealthy entrance in such circumst
ances
Page 277 U. S. 464
became the equivalent to an entry by force. There was actual entrance into the p
rivate quarters of defendant, and the taking away of something tangible. Here we
have testimony only of voluntary conversations secretly overheard.
The Amendment itself shows that the search is to be of material things -- the pe
rson, the house, his papers, or his effects. The description of the warrant nece
ssary to make the proceeding lawful is that it must specify the place to be sear
ched and the person or things to be seized.
It is urged that the language of Mr. Justice Field in Ex parte Jackson, already
quoted, offers an analogy to the interpretation of the Fourth Amendment in respe
ct of wiretapping. But the analogy fails. The Fourth Amendment may have proper a
pplication to a sealed letter in the mail because of the constitutional provisio
n for the Post Office Department and the relations between the Government and th
ose who pay to secure protection of their sealed letters. See Revised Statutes, §§ 3
978 to 3988, whereby Congress monopolizes the carriage of letters and excludes f
rom that business everyone else, and § 3929, which forbids any postmaster or other
person to open any letter not addressed to himself. It is plainly within the wo
rds of the Amendment to say that the unlawful rifling by a government agent of a
sealed letter is a search and seizure of the sender's papers or effects. The le
tter is a paper, an effect, and in the custody of a Government that forbids carr
iage except under its protection.
The United States takes no such care of telegraph or telephone messages as of ma
iled sealed letters. The Amendment does not forbid what was done here. There was
no searching. There was no seizure. The evidence was secured by the use of the
sense of hearing, and that only. There was no entry of the houses or offices of
the defendants.
Page 277 U. S. 465
By the invention of the telephone fifty years ago and its application for the pu
rpose of extending communications, one can talk with another at a far distant pl
ace. The language of the Amendment cannot be extended and expanded to include te
lephone wires reaching to the whole world from the defendant's house or office.
The intervening wires are not part of his house or office any more than are the
highways along which they are stretched.
This Court, in Carroll v. United States, 267 U. S. 132, 267 U. S. 149, declared:
"The Fourth Amendment is to be construed in the light of what was deemed an unre
asonable search and seizure when it was adopted and in a manner which will conse
rve public interests as well as the interests and rights of individual citizens.
"
Justice Bradley, in the Boyd case, and Justice Clark in the Gouled case, said th
at the Fifth Amendment and the Fourth Amendment were to be liberally construed t
o effect the purpose of the framers of the Constitution in the interest of liber
ty. But that cannot justify enlargement of the language employed beyond the poss
ible practical meaning of houses, persons, papers, and effects, or so to apply t
he words search and seizure as to forbid hearing or sight.
Hester v. United States, 265 U. S. 57, held that the testimony of two officers o
f the law who trespassed on the defendant's land, concealed themselves one hundr
ed yards away from his house, and saw him come out and hand a bottle of whiskey
to another was not inadmissible. While there was a trespass, there was no search
of person, house, papers or effects. United States v. Lee, 274 U. S. 559, 274 U
. S. 563; Eversole v. State, 106 Tex.Cr. 567.
Congress may, of course, protect the secrecy of telephone messages by making the
m, when intercepted, inadmissible in evidence in federal criminal trials by dire
ct legislation,
Page 277 U. S. 466
and thus depart from the common law of evidence. But the courts may not adopt su
ch a policy by attributing an enlarged and unusual meaning to the Fourth Amendme
nt. The reasonable view is that one who installs in his house a telephone instru
ment with connecting wires intends to project his voice to those quite outside,
and that the wires beyond his house and messages while passing over them are not
within the protection of the Fourth Amendment. Here, those who intercepted the
projected voices were not in the house of either party to the conversation.
Neither the cases we have cited nor any of the many federal decisions brought to
our attention hold the Fourth Amendment to have been violated as against a defe
ndant unless there has been an official search and seizure of his person, or suc
h a seizure of his papers or his tangible material effects, or an actual physica
l invasion of his house "or curtilage" for the purpose of making a seizure.
We think, therefore, that the wiretapping here disclosed did not amount to a sea
rch or seizure within the meaning of the Fourth Amendment.
What has been said disposes of the only question that comes within the terms of
our order granting certiorari in these cases. But some of our number, departing
from that order, have concluded that there is merit in the two-fold objection ov
erruled in both courts below -- that evidence obtained through intercepting of t
elephone messages by government agents was inadmissible because the mode of obta
ining it was unethical, and a misdemeanor under the law of Washington. To avoid
any misapprehension of our views of that objection, we shall deal with it in bot
h of its phases.
While a Territory, the English common law prevailed in Washington, and thus cont
inued after her admission in 1889. The rules of evidence in criminal cases in co
urts of the United States sitting there, consequently, are those of the common l
aw. 53 U. S. 363, 53 U. S. 366; Logan v. United States, 144 U. S. 263, 144 U. S.
301; Rosen v. United States, 245 U. S. 467; Withaup v. United States, 127 Fed.
530, 534; Robinson v. United States,@ 292 Fed. 683, 685.
The common law rule is that the admissibility of evidence, is not affected by th
e illegality of the means by which it was obtained. Professor Greenleaf, in his
work on evidence, vol. 1, 12th ed., by Redfield, § 254(a) says:
"It may be mentioned in this place, that though papers and other subjects of evi
dence may have been illegally taken from the possession of the party against who
m they are offered, or otherwise unlawfully obtained, this is no valid objection
to their admissibility, if they are pertinent to the issue. The court will not
take notice how they were obtained, whether lawfully or unlawfully, nor will it
form an issue, to determine that question."
Mr. Jones, in his work on the same subject, refers to Mr. Greenleaf's statement
and says:
"Where there is no violation of a constitutional guaranty, the verity of the abo
ve statement is absolute."
Vol. 5, § 2075, note 3.
The rule is supported by many English and American cases cited by Jones in vol.
5, 2075, note 3, and § 2076, note 6, and by Wigmore, vol. 4, § 2183. It is recognize
d by this Court, in Adams v. New York, 192 U. S. 585. The Weeks case announced a
n exception to the common law rule by excluding all evidence in the procuring of
which government officials took part by methods forbidden by the Fourth and Fif
th Amendments. Many state courts do not follow the Weeks case. People v. Defore,
 242 N.Y. 13. But those who do treat it as an exception to the general common la
w rule, and required by constitutional limitations. Hughes v. State, 145 Tenn. 5
44, 551, 566; State v. Wills, 91 W.Va. 659, 677; State v. Slamon, 73 Vt. 212, 21
4, 215; Gindrat v. People, 138 Ill. 103, 111; People v. Castree, 311 Ill. 392, 3
96, 397; State v.
Page 277 U. S. 468
Gardner, 77 Mont. 8, 21; State v. Fahn, 53 N.Dak. 203, 210. The common law rule
must apply in the case at bar. Nor can we, without the sanction of congressional
enactment, subscribe to the suggestion that the courts have a discretion to exc
lude evidence the admission of which is not unconstitutional because unethically
secured. This would be at variance with the common law doctrine generally suppo
rted by authority. There is no case that sustains, nor any recognized text book
that gives color to, such a view. Our general experience shows that much evidenc
e has always been receivable although not obtained by conformity to the highest
ethics. The history of criminal trials shows numerous cases of prosecutions of o
ath-bound conspiracies for murder, robbery, and other crimes where officers of t
he law have disguised themselves and joined the organizations, taken the oaths a
nd given themselves every appearance of active members engaged in the promotion
of crime, for the purpose of securing evidence. Evidence secured by such means h
as always been received.
A standard which would forbid the reception of evidence if obtained by other tha
n nice ethical conduct by government officials would make society suffer and giv
e criminals greater immunity than has been known heretofore. In the absence of c
ontrolling legislation by Congress, those who realize the difficulties in bringi
ng offenders to justice may well deem it wise that the exclusion of evidence sho
uld be confined to cases where rights under the Constitution would be violated b
y admitting it.
The statute of Washington, adopted in 1909, provides (Remington Compiled Statute
s, 1922, § 26518) that:
"Every person . . . who shall intercept, read or in any manner interrupt or dela
y the sending of a message over any telegraph or telephone line . . . shall be g
uilty of a misdemeanor
Page 277 U. S. 469
"
This statute does not declare that evidence obtained by such interception shall
be inadmissible, and, by the common law already referred to, it would not be. Pe
ople v. McDonald, 177 App.Div. (N.Y.) 806. Whether the State of Washington may p
rosecute and punish federal officers violating this law and those whose messages
were intercepted may sue them civilly is not before us. But clearly a statute,
passed twenty years after the admission of the State into the Union cannot affec
t the rules of evidence applicable in courts of the United States in criminal ca
ses. Chief Justice Taney, in @ 53 U. S. 363, construing the 34th section of the
Judiciary Act, said:
"But it could not be supposed, without very plain words to show it, that Congres
s intended to give the states the power of prescribing the rules of evidence in
trials for offenses against the United States. For this construction would place
the criminal jurisprudence of one sovereignty under the control of another."
See also Withaup v. United States, 127 Fed. 530, 534.
The judgments of the Circuit Court of Appeals are affirmed. The mandates will go
 down forthwith under Rule 31.
Affirmed.
MR. JUSTICE HOLMES:
My brother BRANDEIS has given this case so exhaustive an examination that I desi
re to add but a few words. While I do not deny it, I am not prepared to say that
the penumbra of the Fourth and Fifth Amendments covers the defendant, although
I fully agree that Courts are apt to err by sticking too closely to the words of
a law where those words import a policy that goes beyond them. Gooch v. Oregon
Short line R.R. Co., 258 U. S. 22, 258 U. S. 24. But I think, as MR. JUSTICE BRA
NDEIS says, that, apart from the Constitution, the Government ought not to use
Page 277 U. S. 470
evidence obtained and only obtainable by a criminal act. There is no body of pre
cedents by which we are bound, and which confines us to logical deduction from e
stablished rules. Therefore we must consider the two objects of desire, both of
which we cannot have, and make up our minds which to choose. It is desirable tha
t criminals should be detected, and, to that end, that all available evidence sh
ould be used. It also is desirable that the Government should not itself foster
and pay for other crime, when they are the means by which the evidence is to be
obtained. If it pays its officers for having got evidence by crime I do not see
why it may not as well pay them for getting it in the same way, and I can attach
no importance to protestations of disapproval if it knowingly accepts and pays
and announces that, in future it will pay for the fruits. We have to choose, and
, for my part, I think it a less evil that some criminals should escape than tha
t the Government should play an ignoble part.
For those who agree with me, no distinction can be taken between the Government
as prosecutor and the Government as judge. If the existing code does not permit
district attorneys to have a hand in such dirty business, it does not permit the
judge to allow such iniquities to succeed. See Silverthorne Lumber Co. v. Unite
d States, 251 U. S. 385. And if all that I have said so far be accepted, it make
s no difference that, in this case, wiretapping is made a crime by the law of th
e State, not by the law of the United States. It is true that a State cannot mak
e rules of evidence for Courts of the United States, but the State has authority
over the conduct in question, and I hardly think that the United States would a
ppear to greater advantage when paying for an odious crime against State law tha
n when inciting to the disregard of its own. I am aware of the often repeated st
atement that, in a criminal proceeding, the Court will not take notice of the ma
nner in which papers offered in evidence have been
Page 277 U. S. 471
obtained. But that somewhat rudimentary mode of disposing of the question has be
en overthrown by Weeks v. United States, 232 U. S. 383, and the cases that have
followed it. I have said that we are free to choose between two principles of po
licy. But if we are to confine ourselves to precedent and logic, the reason for
excluding evidence obtained by violating the Constitution seems to me logically
to lead to excluding evidence obtained by a crime of the officers of the law.
MR. JUSTICE BRANDEIS, dissenting.
The defendants were convicted of conspiring to violate the National Prohibition
Act. Before any of the persons now charged had been arrested or indicted, the te
lephones by means of which they habitually communicated with one another and wit
h others had been tapped by federal officers. To this end, a lineman of long exp
erience in wiretapping was employed on behalf of the Government and at its expen
se. He tapped eight telephones, some in the homes of the persons charged, some i
n their offices. Acting on behalf of the Government and in their official capaci
ty, at least six other prohibition agents listened over the tapped wires and rep
orted the messages taken. Their operations extended over a period of nearly five
months. The typewritten record of the notes of conversations overheard occupies
775 typewritten pages. By objections seasonably made and persistently renewed,
the defendants objected to the admission of the evidence obtained by wiretapping
on the ground that the Government's wiretapping constituted an unreasonable sea
rch and seizure in violation of the Fourth Amendment, and that the use as eviden
ce of the conversations overheard compelled the defendants to be witnesses again
st themselves in violation of the Fifth Amendment.
The Government makes no attempt to defend the methods employed by its officers.
Indeed, it concedes
Page 277 U. S. 472
that, if wiretapping can be deemed a search and seizure within the Fourth Amendm
ent, such wiretapping as was practiced in the case at bar was an unreasonable se
arch and seizure, and that the evidence thus obtained was inadmissible. But it r
elies on the language of the Amendment, and it claims that the protection given
thereby cannot properly be held to include a telephone conversation.
"We must never forget," said Mr. Chief Justice Marshall in 17 U. S. 407, "that i
t is a constitution we are expounding." Since then, this Court has repeatedly su
stained the exercise of power by Congress, under various clauses of that instrum
ent, over objects of which the Fathers could not have dreamed. See Pensacola Tel
egraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 96 U. S. 9; Northern Paci
fic Ry. Co. v. North Dakota, 250 U. S. 135; Dakota Central Telephone Co. v. Sout
h Dakota, 250 U. S. 163; Brooks v. United States, 267 U. S. 432. We have likewis
e held that general limitations on the powers of Government, like those embodied
in the due process clauses of the Fifth and Fourteenth Amendments, do not forbi
d the United States or the States from meeting modern conditions by regulations
which, "a century ago, or even half a century ago, probably would have been reje
cted as arbitrary and oppressive." Village of Euclid v. Ambler Realty Co., 272 U
. S. 365, 272 U. S. 387; Buck v. Bell, 274 U. S. 200. Clauses guaranteeing to th
e individual protection against specific abuses of power must have a similar cap
acity of adaptation to a changing world. It was with reference to such a clause
that this Court said, in Weems v. United States,@ 217 U. S. 349, 217 U. S. 373:
"Legislation, both statutory and constitutional, is enacted, it is true, from an
experience of evils, but its general language should not, therefore, be necessa
rily confined to the form that evil had theretofore taken. Time works changes, b
rings into existence new conditions
Page 277 U. S. 473
and purposes. Therefore, a principle, to be vital, must be capable of wider appl
ication than the mischief which gave it birth. This is peculiarly true of consti
tutions. They are not ephemeral enactments, designed to meet passing occasions.
They are, to use the words of Chief Justice Marshall 'designed to approach immor
tality as nearly as human institutions can approach it.' The future is their car
e, and provision for events of good and bad tendencies of which no prophecy can
be made. In the application of a constitution, therefore, our contemplation cann
ot be only of what has been, but of what may be. Under any other rule, a constit
ution would indeed be as easy of application as it would be deficient in efficac
y and power. Its general principles would have little value, and be converted by
precedent into impotent and lifeless formulas. Rights declared in words might b
e lost in reality."
When the Fourth and Fifth Amendments were adopted, "the form that evil had there
tofore taken" had been necessarily simple. Force and violence were then the only
means known to man by which a Government could directly effect self-incriminati
on. It could compel the individual to testify -- a compulsion effected, if need
be, by torture. It could secure possession of his papers and other articles inci
dent to his private life -- a seizure effected, if need be, by breaking and entr
y. Protection against such invasion of "the sanctities of a man's home and the p
rivacies of life" was provided in the Fourth and Fifth Amendments by specific la
nguage. Boyd v. United States, 116 U. S. 616, 116 U. S. 630. But "time works cha
nges, brings into existence new conditions and purposes." Subtler and more far-r
eaching means of invading privacy have become available to the Government. Disco
very and invention have made it possible for the Government, by means far more e
ffective than stretching upon the rack, to obtain disclosure in court of what is
whispered in the closet.
Page 277 U. S. 474
Moreover, "in the application of a constitution, our contemplation cannot be onl
y of what has, been but of what may be." The progress of science in furnishing t
he Government with means of espionage is not likely to stop with wiretapping. Wa
ys may someday be developed by which the Government, without removing papers fro
m secret drawers, can reproduce them in court, and by which it will be enabled t
o expose to a jury the most intimate occurrences of the home. Advances in the ps
ychic and related sciences may bring means of exploring unexpressed beliefs, tho
ughts and emotions. "That places the liberty of every man in the hands of every
petty officer" was said by James Otis of much lesser intrusions than these. [Foo
tnote 1] To Lord Camden, a far slighter intrusion seemed "subversive of all the
comforts of society." [Footnote 2] Can it be that the Constitution affords no pr
otection against such invasions of individual security?
A sufficient answer is found in Boyd v. United States, 116 U. S. 616, 116 U. S.
627-630, a case that will be remembered as long as civil liberty lives in the Un
ited States. This Court there reviewed the history that lay behind the Fourth an
d Fifth Amendments. We said with reference to Lord Camden's judgment in Entick v
. Carrington, 19 Howell's State Trials 1030:
"The principles laid down in this opinion affect the very essence of constitutio
nal liberty and security. They reach farther than the concrete form of the case
there before the court, with its adventitious circumstances; they apply to all i
nvasions on the part of the Government and its employes of the sanctities of a m
an's home and the privacies of life. It is not the breaking of his doors, and th
e rummaging of his drawers, that constitutes the essence of the offence; but it
is the invasion of his indefeasible right of personal security,
Page 277 U. S. 475
personal liberty and private property, where that right has never been forfeited
by his conviction of some public offence -- it is the invasion of this sacred r
ight which underlies and constitutes the essence of Lord Camden's judgment. Brea
king into a house and opening boxes and drawers are circumstances of aggravation
; but any forcible and compulsory extortion of a man's own testimony or of his p
rivate papers to be used as evidence of a crime or to forfeit his goods is withi
n the condemnation of that judgment. In this regard, the Fourth and Fifth Amendm
ents run almost into each other. [Footnote 3]"
In Ex parte Jackson, 96 U. S. 727, it was held that a sealed letter entrusted to
the mail is protected by the Amendments. The mail is a public service furnished
by the Government. The telephone is a public service furnished by its authority
. There is, in essence, no difference between the sealed letter and the private
telephone message. As Judge Rudkin said below:
"True, the one is visible, the other invisible; the one is tangible, the other i
ntangible; the one is sealed, and the other unsealed, but these are distinctions
without a difference."
The evil incident to invasion of the privacy of the telephone is far greater tha
n that involved in tampering with the mails. Whenever a telephone line is tapped
, the privacy of the persons at both ends of the line is invaded and all convers
ations
Page 277 U. S. 476
between them upon any subject, and, although proper, confidential and privileged
, may be overheard. Moreover, the tapping of one man's telephone line involves t
he tapping of the telephone of every other person whom he may call or who may ca
ll him. As a means of espionage, writs of assistance and general warrants are bu
t puny instruments of tyranny and oppression when compared with wiretapping.
Time and again, this Court in giving effect to the principle underlying the Four
th Amendment, has refused to place an unduly literal construction upon it. This
was notably illustrated in the Boyd case itself. Taking language in its ordinary
meaning, there is no "search" or "seizure" when a defendant is required to prod
uce a document in the orderly process of a court's procedure. "The right of the
people to be secure in their persons, houses, papers, and effects, against unrea
sonable searches and seizures" would not be violated, under any ordinary constru
ction of language, by compelling obedience to a subpoena. But this Court holds t
he evidence inadmissible simply because the information leading to the issue of
the subpoena has been unlawfully secured. Silverthorne Lumber Co. v. United Stat
es, 251 U. S. 385. Literally, there is no "search" or "seizure" when a friendly
visitor abstracts papers from an office; yet we held in Gouled v. United States,
255 U. S. 298, that evidence so obtained could not be used. No court which look
ed at the words of the Amendment, rather than at its underlying purpose, would h
old, as this Court did in Ex parte Jackson, 96 U. S. 727, 96 U. S. 733, that its
protection extended to letters in the mails. The provision against self-incrimi
nation in the Fifth Amendment has been given an equally broad construction. The
language is: "No person shall be compelled in any criminal case to be a witness
against himself." Yet we have held not only that the
Page 277 U. S. 477
protection of the Amendment extends to a witness before a grand jury, although h
e has not been charged with crime, Counselman v. Hitchcock, 142 U. S. 547, 142 U
. S. 562, 586, but that:
"[i]t applies alike to civil and criminal proceedings, wherever the answer might
tend to subject to criminal responsibility him who gives it. The privilege prot
ects a mere witness as fully as it does one who is also a party defendant."
McCarthy v. Arndsten, 266 U. S. 34, 266 U. S. 40. The narrow language of the Ame
ndment has been consistently construed in the light of its object,
"to insure that a person should not be compelled, when acting as a witness in an
y investigation, to give testimony which might tend to show that he himself had
committed a crime. The privilege is limited to criminal matters, but it is as br
oad as the mischief against which it seeks to guard."
Counselman v. Hitchcock, supra, p. 142 U. S. 562.
Decisions of this Court applying the principle of the Boyd case have settled the
se things. Unjustified search and seizure violates the Fourth Amendment, whateve
r the character of the paper; [Footnote 4] whether the paper when taken by the f
ederal officers was in the home, [Footnote 5] in an office, [Footnote 6] or else
where; [Footnote 7] whether the taking was effected by force, [Footnote 8] by
Page 277 U. S. 478
fraud, [Footnote 9] or in the orderly process of a court's procedure. [Footnote
10] From these decisions, it follows necessarily that the Amendment is violated
by the officer's reading the paper without a physical seizure, without his even
touching it, and that use, in any criminal proceeding, of the contents of the pa
per so examined -- as where they are testified to by a federal officer who thus
saw the document, or where, through knowledge so obtained, a copy has been procu
red elsewhere [Footnote 11] -- any such use constitutes a violation of the Fifth
Amendment.
The protection guaranteed by the Amendments is much broader in scope. The makers
of our Constitution undertook to secure conditions favorable to the pursuit of
happiness. They recognized the significance of man's spiritual nature, of his fe
elings, and of his intellect. They knew that only a part of the pain, pleasure a
nd satisfactions of life are to be found in material things. They sought to prot
ect Americans in their beliefs, their thoughts, their emotions and their sensati
ons. They conferred, as against the Government, the right to be let alone -- the
most comprehensive of rights, and the right most valued by civilized men. To pr
otect that right, every unjustifiable intrusion by the Government upon the priva
cy of the individual, whatever the means employed, must be deemed a violation of
the Fourth Amendment. And the use, as evidence
Page 277 U. S. 479
in a criminal proceeding, of facts ascertained by such intrusion must be deemed
a violation of the Fifth.
Applying to the Fourth and Fifth Amendments the established rule of construction
, the defendants' objections to the evidence obtained by wiretapping must, in my
opinion, be sustained. It is, of course, immaterial where the physical connecti
on with the telephone wires leading into the defendants' premises was made. And
it is also immaterial that the intrusion was in aid of law enforcement. Experien
ce should teach us to be most on our guard to protect liberty when the Governmen
t's purposes are beneficent. Men born to freedom are naturally alert to repel in
vasion of their liberty by evil-minded rulers. The greatest dangers to liberty l
urk in insidious encroachment by men of zeal, well meaning but without understan
ding. [Footnote 12]
Independently of the constitutional question, I am of opinion that the judgment
should be reversed. By the laws of Washington, wiretapping is a crime. [Footnote
13] Pierce's
Page 277 U. S. 480
Code, 1921, § 8976(18). To prove its case, the Government was obliged to lay bare
the crimes committed by its officers on its behalf. A federal court should not p
ermit such a prosecution to continue. Compare Harkin v. Brundage, 276 U. S. 36,
id., 604.
Page 277 U. S. 481
The situation in the case at bar differs widely from that presented in Burdeau v
. McDowell, 256 U. S. 465. There, only a single lot of papers was involved. They
had been obtained by a private detective while acting on behalf of a private pa
rty; without the knowledge of any federal official; long before anyone had thoug
ht of instituting a
Page 277 U. S. 482
federal prosecution. Here, the evidence obtained by crime was obtained at the Go
vernment's expense, by its officers, while acting on its behalf; the officers wh
o committed these crimes are the same officers who were charged with the enforce
ment of the Prohibition Act; the crimes of these officers were committed for the
purpose of securing evidence with which to obtain an indictment and to secure a
conviction. The evidence so obtained constitutes the warp and woof of the Gover
nment's case. The aggregate of the Government evidence occupies 306 pages of the
printed record. More than 210 of them are filled by recitals of the details of
the wiretapping and of facts ascertained thereby. [Footnote 14] There is literal
ly no other evidence of guilt on the part of some of the defendants except that
illegally obtained by these officers. As to nearly all the defendants (except th
ose who admitted guilt), the evidence relied upon to secure a conviction consist
ed mainly of that which these officers had so obtained by violating the state la
w.
As Judge Rudkin said below:
"Here we are concerned with neither eavesdroppers nor thieves. Nor are we concer
ned with the acts of private individuals. . . . We are concerned only with the a
cts of federal agents whose powers are limited and controlled by the Constitutio
n of the United States."
The Eighteenth Amendment has not, in terms, empowered Congress to authorize anyo
ne to violate the criminal laws of a State. And Congress has never purported to
do so. Compare Maryland v. Soper, 270 U. S. 9. The terms of appointment of feder
al prohibition agents do not purport to confer upon them authority to violate an
y criminal law. Their superior officer, the Secretary of the Treasury, has not i
nstructed them to commit
Page 277 U. S. 483
crime on behalf of the United States. It may be assumed that the Attorney Genera
l of the United States did not give any such instruction. [Footnote 15]
When these unlawful acts were committed, they were crimes only of the officers i
ndividually. The Government was innocent, in legal contemplation, for no federal
official is authorized to commit a crime on its behalf. When the Government, ha
ving full knowledge, sought, through the Department of Justice, to avail itself
of the fruits of these acts in order to accomplish its own ends, it assumed mora
l responsibility for the officers' crimes. Compare The Paquete Habana, 189 U. S.
453, 189 U. S. 465; O'Reilly deCamara v. Brooke, 209 U. S. 45, 209 U. S. 52; Do
dge v. United States, 272 U. S. 530, 272 U. S. 532; Gambino v. United States, 27
5 U. S. 310. And if this Court should permit the Government, by means of its off
icers' crimes, to effect its purpose of punishing the defendants, there would se
em to be present all the elements of a ratification. If so, the Government itsel
f would become a lawbreaker.
Will this Court, by sustaining the judgment below, sanction such conduct on the
part of the Executive? The governing principle has long been settled. It is that
a court will not redress a wrong when he who invokes its aid has unclean hands.
[Footnote 16] The maxim of unclean hands comes
Page 277 U. S. 484
from courts of equity. [Footnote 17] But the principle prevails also in courts o
f law. Its common application is in civil actions between private parties. Where
 the Government is the actor, the reasons for applying it are even more persuasi
ve. Where the remedies invoked are those of the criminal law, the reasons are co
mpelling. [Footnote 18]
The door of a court is not barred because the plaintiff has committed a crime. T
he confirmed criminal is as much entitled to redress as his most virtuous fellow
citizen; no record of crime, however long, makes one an outlaw. The court's aid
is denied only when he who seeks it has violated the law in connection with the
very transaction as to which he seeks legal redress. [Footnote 19] Then aid is
denied despite the defendant's wrong. It is denied in order to maintain respect
for law; in order to promote confidence in the administration of justice; in ord
er to preserve the judicial process from contamination. The rule is one, not of
action, but of inaction. It is sometimes
Page 277 U. S. 485
spoken of as a rule of substantive law. But it extends to matters of procedure,
as well. [Footnote 20] A defense may be waived. It is waived when not pleaded. B
ut the objection that the plaintiff comes with unclean hands will be taken by th
e court itself. [Footnote 21] It will be taken despite the wish to the contrary
of all the parties to the litigation. The court protects itself.
Decency, security and liberty alike demand that government officials shall be su
bjected to the same rules of conduct that are commands to the citizen. In a gove
rnment of laws, existence of the government will be imperiled if it fails to obs
erve the law scrupulously. Our Government is the potent, the omnipresent teacher
. For good or for ill, it teaches the whole people by its example. Crime is cont
agious. If the Government becomes a lawbreaker, it breeds contempt for law; it i
nvites every man to become a law unto himself; it invites anarchy. To declare th
at, in the administration of the criminal law, the end justifies the means -- to
declare that the Government may commit crimes in order to secure the conviction
of a private criminal -- would bring terrible retribution. Against that pernici
ous doctrine this Court should resolutely set its face.
[Footnote 1]
Otis' Argument against Writs of Assistance. See Tudor, James Otis, p. 66; John A
dams, Works, Vol. II, p. 524; Minot, Continuation of the History of Massachusett
s Bay, Vol. II, p 95.
[Footnote 2]
Entick v. Carrington, 19 Howell's State Trials, 1030, 1066.
[Footnote 3]
In Interstate Commerce Commission v. Brimson, 154 U. S. 447, 154 U. S. 479, the
statement made in the Boyd case was repeated, and the Court quoted the statement
of Mr. Justice Field in In re Pacific Railway Commission, 32 Fed. 241, 250:
"Of all the rights of the citizen, few are of greater importance or more essenti
al to his peace and happiness than the right of personal security, and that invo
lves not merely protection of his person from assault, but exemption of his priv
ate affairs, books, and papers, from the inspection and scrutiny of others. With
out the enjoyment of this right, all others would lose half their value."
The Boyd case has been recently reaffirmed in Silverthorne Lumber Co. v. United
States, 251 U. S. 385, in Gouled v. United States, 255 U. S. 298, and in Byars v
. United States, 273 U. S. 28.
[Footnote 4]
Gouled v. United States, 255 U. S. 298.
[Footnote 5]
Weeks v. United States, 232 U. S. 383; Amos v. United States, 255 U. S. 313; Agn
ello v. United States, 269 U. S. 20; Byars v. United States, 273 U. S. 28.
[Footnote 6]
Boyd v. United States, 116 U. S. 616; Hale v. Henkel, 201 U. S. 43, 201 U. S. 70
; Silverthorne Lumber Co. v. United States, 251 U. S. 385; Gouled v. United Stat
es, 255 U. S. 298; Marron v. United States, 275 U. S. 192.
[Footnote 7]
Ex parte Jackson, 96 U. S. 727, 96 U. S. 733; Carroll v. United States, 267 U. S
. 132, 267 U. S. 156; Gambino v. United States, 275 U. S. 310.
[Footnote 8]
Weeks v. United States, 232 U. S. 383; Silverthorne Lumber Co. v. United States,
251 U. S. 385; Amos v. United States, 255 U. S. 313; Carroll v. United States,
267 U. S. 132, 267 U. S. 156; Agnello v. United States, 269 U. S. 20; Gambino v.
United States, 275 U. S. 310.
[Footnote 9]
Gouled v. United States, 255 U. S. 298.
[Footnote 10]
Boyd v. United States, 116 U. S. 616; Hale v. Henkel, 201 U. S. 43, 201 U. S. 70
. See Gouled v. United States, 255 U. S. 298; Byars v. United States, 273 U. S.
28; Marron v. United States, 275 U. S. 192.
[Footnote 11]
Silverthorne Lumber Co. v. United States, 251 U. S. 385. Compare Gouled v. Unite
d States, 255 U. S. 298, 255 U. S. 307. In Stroud v. United States, 251 U. S. 15
, and Hester v. United States, 265 U. S. 57, the letter and articles admitted we
re not obtained by unlawful search and seizure. They were voluntary disclosures
by the defendant. Compare Smith v. United States, 2 F.2d 715; United States v. L
ee, 274 U. S. 559.
[Footnote 12]
The point is thus stated by counsel for the telephone companies, who have filed
a brief as amici curiae:
"Criminals will not escape detection and conviction merely because evidence obta
ined by tapping wires of a public telephone system is inadmissible, if it should
be so held; but, in any event, it is better that a few criminals escape than th
at the privacies of life of all the people be exposed to the agents of the gover
nment, who will act at their own discretion, the honest and the dishonest, unaut
horized and unrestrained by the courts. Legislation making wiretapping a crime w
ill not suffice if the courts nevertheless hold the evidence to be lawful."
[Footnote 13]
In the following states, it is a criminal offense to intercept a message sent by
telegraph and/or telephone: Alabama, Code, 1923, § 5256; Arizona, Revised Statute
s, 1913, Penal Code, § 692; Arkansas, Crawford & Moses Digest, 1921, § 10246; Califo
rnia, Deering's Penal Code, 1927, § 640; Colorado, Compiled Laws, 1921, § 6969; Conn
ecticut, General Statutes, 1918, § 6292; Idaho, Compiled Statutes, 1919, §§ 8574, 8586
; Illinois, Revised Statutes, 1927, c. 134, § 21; Iowa, Code, 1927, § 13121; Kansas,
Revised Statutes, 1923, c. 17, § 1908; Michigan Compiled Laws, 1915, § 15403; Monta
na, Penal Code, 1921, § 11518; Nebraska, Compiled Statutes, 1922, § 7115; Nevada, Re
vised Laws, 1912, §§ 4608, 6572(18); New York, Consolidated Laws, c. 40, § 1423(6); No
rth Dakota, Compiled Laws, 1913, § 10231; Ohio, Page's General Code, 1926, § 13402;
Oklahoma, Session Laws, 1923, c. 46; Oregon, Olson's Laws, 1920, § 2265; South Dak
ota, Revised Code, 1919, § 4312; Tennessee, Shannon's Code, 1919, §§ 1839, 1840; Utah,
Compiled Laws, 1917, § 8433; Virginia, Code, 1924, § 4477(2), (3); Washington, Pier
ce's Code, 1921, § 8976(18); Wisconsin, Statutes, 1927, § 348.37; Wyoming, Compiled
Statutes, 1920, § 7148. Compare State v. Behringer, 19 Ariz. 502; State v. Norsko,
76 Wash. 472.
In the following states. it is a criminal offense for a company engaged in the t
ransmission of messages by telegraph and/or telephone, or its employees, or, in
many instances, persons conniving with them, to disclose or to assist in the dis
closure of any message: Alabama, Code, 1923, §§ 5543, 5545; Arizona, Revised Statute
s, 1913, Penal Code, §§ 621, 623, 691; Arkansas, Crawford & Moses Digest, 1921, § 1025
0; California, Deering's Penal Code, 1927, §§ 619, 621, 639, 641; Colorado, Compiled
Laws, 1921, §§ 6966, 6968, 6970; Connecticut, General Statutes, 1918, § 6292; Florida
, Revised General Statutes, 1920, §§ 5754, 5755; Idaho, Compiled Statutes, 1919, §§ 8568
, 8570; Illinois, Revised Statutes, 1927, c. 134, §§ 7, 7a; Indiana, Burns' Revised
Statutes, 1926, § 2862; Iowa, Code, 1924, § 8305; Louisiana, Acts, 1918, c. 134, p.
228; Maine, Revised Statutes, 1916, c. 60, § 24; Maryland, Bagby's Code, 1926, § 489
; Michigan, Compiled Statutes, 1915, § 15104; Minnesota, General Statutes, 1923, §§ 10
423, 10424; Mississippi, Hemingway's Code, 1927, § 1174; Missouri, Revised Statute
s, 1919, § 3605; Montana, Penal Code, 1921, § 11494; Nebraska, Compiled Statutes, 19
22, § 7088; Nevada, Revised Laws, 1912, §§ 4603, 4605, 4609, 4631; New Jersey, Compile
d Statutes, 1910, p. 5319; New York, Consolidated Laws, c. 40, §§ 552, 553; North Ca
rolina, Consolidated Statutes, 1919, §§ 4497, 4498, 4499; North Dakota, Compiled Law
s, 1913, § 10078; Ohio, Page's General Code, 1926, §§ 13388, 13419; Oklahoma, Session
Laws, 1923, c. 46; Oregon, Olson's Laws, 1920, §§ 2260, 2262, 2266; Pennsylvania, St
atutes, 1920, §§ 6306, 6308, 6309; Rhode Island, General Laws, 1923, § 6104; South Dak
ota, Revised Code, 1919, §§ 4346, 9801; Tennessee, Shannon's Code, 1919, §§ 1837, 1838;
Utah, Compiled Laws, 1917, §§ 8403, 8405, 8434; Washington, Pierce's Code, 1921, §§ 8982
, 8983, Wisconsin, Statutes, 1927, § 348.36.
The Alaskan Penal Code, Act of March 3, 1899, c. 429, 30 Stat. 1253, 1278, provi
des that,
"if any officer, agent, operator, clerk, or employee of any telegraph company, o
r any other person, shall willfully divulge to any other person than the party f
rom whom the same was received, or to whom the same was addressed, or his agent
or attorney, any message received or sent, or intended to be sent, over any tele
graph line, or the contents, substance, purport, effect, or meaning of such mess
age, or any part thereof, . . . the person so offending shall be deemed guilty o
f a misdemeanor, and shall be punished by a fine not to exceed one thousand doll
ars or imprisonment not to exceed one year, or by both such fine and imprisonmen
t, in the discretion of the court."
The Act of October 29, 1918, c.197, 40 Stat. 1017, provided:
"That whoever, during the period of governmental operation of the telephone and
telegraph systems of the United States . . . , shall, without authority and with
out the knowledge and consent of the other users thereof, except as may be neces
sary for operation of the service, tap any telegraph or telephone line, or willf
ully interfere with the operation of such telephone and telegraph systems or wit
h the transmission of any telephone or telegraph message, or with the delivery o
f any such message, or whoever being employed in any such telephone or telegraph
service, shall divulge the contents of any such telephone or telegraph message
to any person not duly authorized to receive the same, shall be fined not exceed
ing $1,000 or imprisoned for not more than one year, or both."
The Radio Act, February 23, 1927, c. 169, § 27, 44 Stat. 1162, 1172, provides that
"no person not being authorized by the sender shall intercept any message and di
vulge or publish the contents, substance, purport, effect, or meaning of such in
tercepted message to any person."
[Footnote 14]
The above figures relate to Case No. 493. In Nos. 532-533, the Government eviden
ce fills 278 pages, of which 140 are recitals of the evidence obtained by wireta
pping.
[Footnote 15]
According to the Government's brief, p. 41, "The Prohibition Unit of the Treasur
y disclaims it [wiretapping], and the Department of Justice has frowned on it."
See also "Prohibition Enforcement," 69th Congress,2d Session, Senate Doc. No.198
, pp. IV, V, 13, 15, referred to Committee, January 25, 1927; also same, Part 2.
[Footnote 16]
See 7 U. S. 247; 27 U. S. 538; 29 U. S. 188; 55 U. S. 52; 57 U. S. 334; 69 U. S.
54; 73 U. S. 532; 74 U. S. 486; 79 U. S. 349; 88 U. S. 448; Meguire v. Corwine,
101 U. S. 108, 101 U. S. 111; Oscanyan v. Arms Co., 103 U. S. 261; Irwin v. Wil
liar, 110 U. S. 499, 110 U. S. 510; Woodstock Iron Co. v. Richmond & Danville Ex
tension Co., 129 U. S. 643; Gibbs v. Consolidated Gas Co., 130 U. S. 396, 130 U.
S. 411; Embrey v. Jemison, 131 U. S. 336, 131 U. S. 348; West v. Camden, 135 U.
S. 507, 135 U. S. 521; McMullen v. Hoffman, 174 U. S. 639, 174 U. S. 654; Hazel
ton v. Sheckells, 202 U. S. 71; Crocker v. United States, 240 U. S. 74, 240 U. S
. 78. Compare Holman v. Johnson, 1 Cowp. 341.
[Footnote 17]
See 46 U. S. 204; 55 U. S. 49; 67 U. S. 586; 68 U. S. 530; Dent v. Ferguson, 132
U. S. 50, 132 U. S. 64; Pope Manufacturing Co. v. Gormully, 144 U. S. 224, 144
U. S. 236; Miller v. Ammon, 145 U. S. 421, 145 U. S. 425; Hazelton v. Sheckells,
202 U. S. 71, 202 U. S. 79. Compare International News Service v. Associated Pr
ess, 248 U. S. 215, 248 U. S. 245.
[Footnote 18]
Compare State v. Simmons, 39 Kan. 262, 264-265; State v. Miller, 44 Mo.App. 159,
163-164; In re Robinson, 29 Neb. 135; Harris v. State, 15 Tex.App. 629, 634-635
, 639.
[Footnote 19]
24 U. S. 499-500; Houston & Texas Central R.R. Co. v. Texas, 177 U. S. 66, 177 U
. S. 99; Bothwell v. Buckbee, Mears Co.,@ 275 U. S. 274.
[Footnote 20]
See Lutton v. Benin, 11 Mod. 50; Barlow v. Hall, 2 Anst. 461; Wells v. Gurney, 8
Barn. & Cress. 769; Ilsley v. Nichols, 12 Pick. 270; Carpenter v. Spooner, 2 Sa
ndf. 717; Metcalf v. Clark, 41 Barb. 45; Williams ads. Reed, 29 N.J.L. 385; Hill
v. Goodrich, 32 Conn. 588; Townsend v. Smith, 47 Wis. 623; Blandin v. Ostrander
, 239 Fed. 700; Harkin v. Brundage, 276 U.S. 36, id., 604.
[Footnote 21]
74 U. S. 558; Oscanyan v. Arms Co., 103 U. S. 261, 103 U. S. 267; Higgins v. McC
rea, 116 U. S. 671, 116 U. S. 685. Compare Evans v. Richardson, 3 Mer. 469; Norm
an v. Cole, 3 Esp. 253; Northwestern Salt Co. v. Electrolytic Alkali Co.,@ [1913
] 3 K.B. 422.
MR. JUSTICE BUTLER, dissenting.
I sincerely regret that I cannot support the opinion and judgments of the Court
in these cases.
Page 277 U. S. 486
The order allowing the writs of certiorari operated to limit arguments of counse
l to the constitutional question. I do not participate in the controversy that h
as arisen here as to whether the evidence was inadmissible because the mode of o
btaining it was unethical and a misdemeanor under state law. I prefer to say not
hing concerning those questions, because they are not within the jurisdiction ta
ken by the order.
The Court is required to construe the provision of the Fourth Amendment that dec
lares:
"The right of the people to be secure in their persons, houses, papers and effec
ts, against unreasonable searches and seizures, shall not-be violated."
The Fifth Amendment prevents the use of evidence obtained through searches and s
eizures in violation of the rights of the accused protected by the Fourth Amendm
ent.
The single question for consideration is this: may the Government, consistently
with that clause, have its officers whenever they see fit, tap wires, listen to,
take down, and report the private messages and conversations transmitted by tel
ephones?
The United States maintains that
"The 'wiretapping' operations of the federal prohibition agents were not a 'sear
ch and seizure' in violation of the security of the 'persons, houses, papers and
effects' of the petitioners in the constitutional sense or within the intendmen
t of the Fourth Amendment."
The Court, adhering to and reiterating the principles laid down and applied in p
rior decisions * construing the search and seizure clause, in substance adopts t
he contention of the Government.
The question at issue depends upon a just appreciation of the facts.
Page 277 U. S. 487
Telephones are used generally for transmission of messages concerning official,
social, business and personal affairs, including communications that are private
and privileged -- those between physician and patient, lawyer and client, paren
t and child, husband and wife. The contracts between telephone companies and use
rs contemplate the private use of the facilities employed in the service. The co
mmunications belong to the parties between whom they pass. During their transmis
sion, the exclusive use of the wire belongs to the persons served by it. Wiretap
ping involves interference with the wire while being used. Tapping the wires and
listening in by the officers literally constituted a search for evidence. As th
e communications passed, they were heard and taken down.
In Boyd v. United States, 116 U. S. 616, there was no "search or seizure" within
the literal or ordinary meaning of the words, nor was Boyd -- if these constitu
tional provisions were read strictly according to the letter -- compelled in a "
criminal case" to be a "witness" against himself. The statute, there held uncons
titutional because repugnant to the search and seizure clause, merely authorized
judgment for sums claimed by the Government on account of revenue if the defend
ant failed to produce his books, invoices and papers. The principle of that case
has been followed, developed and applied in this and many other courts. And it
is in harmony with the rule of liberal construction that always has been applied
to provisions of the Constitution safeguarding personal rights (Byars v. United
States, 273 U. S. 28, 273 U. S. 32), as well as to those granting governmental
powers. 17 U. S. 404, 17 U. S. 406, 17 U. S. 407, 17 U. S. 421. 5 U. S. 153, 5 U
. S. 176. Cohens v. Virginia, 6 Wheat. 264. Myers v. United States, 272 U. S. 52
.
This Court has always construed the Constitution in the light of the principles
upon which it was founded.
Page 277 U. S. 488
The direct operation or literal meaning of the words used do not measure the pur
pose or scope of its provisions. Under the principles established and applied by
this Court, the Fourth Amendment safeguards against all evils that are like and
equivalent to those embraced within the ordinary meaning of its words. That con
struction is consonant with sound reason, and in full accord with the course of
decisions since McCulloch v. Maryland. That is the principle directly applied in
the Boyd case.
When the facts in these cases are truly estimated, a fair application of that pr
inciple decides the constitutional question in favor of the petitioners. With gr
eat deference, I think they should be given a new trial.
* Ex parte Jackson, 96 U. S. 727. Boyd v. United States, 116 U. S. 616. Weeks v.
United States, 232 U. S. 383. Silverthorne Lumber Co. v. United States, 251 U.
S. 385. Gouled v. United States, 255 U. S. 298. Amos v. United States, 255 U. S.
313.
MR. JUSTICE STONE, dissenting.
I concur in the opinions of MR. JUSTICE HOLMES and MR. JUSTICE BRANDEIS. I agree
also with that of MR. JUSTICE BUTLER so far as it deals with the merits. The ef
fect of the order granting certiorari was to limit the argument to a single ques
tion, but I do not understand that it restrains the Court from a consideration o
f any question which we find to be presented by the record, for, under Jud.Code,
§ 240(a), this Court determines a case here on certiorari "with the same power an
d authority, and with like effect, as if the cause had been brought [here] by un
restricted writ of error or appeal."
Skinner v. Oklahoma ex rel. Williamson
No. 782
Argued May 6, 1942
Decided June 1, 1942
316 U.S. 535
CERTIORARI TO THE SUPREME COURT OF OKLAHOMA
Syllabus
1. A statute of Oklahoma provides for the sterilization, by vasectomy or salping
ectomy, of "habitual criminals" -- an habitual criminal being defined therein as
any person who, having been convicted two or more times, in Oklahoma or in any
other State, of "felonies involving moral turpitude," is thereafter convicted an
d sentenced to imprisonment in Oklahoma for such a crime. Expressly excepted fro
m the terms of the statute are certain offenses, including embezzlement. As appl
ied to one who was convicted once of stealing chickens and twice of robbery, hel
d that the statute violated the equal protection clause of the Fourteenth Amendm
ent. P. 316 U. S. 537.
2. The State Supreme Court having sustained the Act, as applied to the petitione
r here, without reference to a severability clause, the question whether that cl
ause would be so applied as to remove the particular constitutional objection is
one which may appropriately be left for adjudication by the state court. P. 316
U. S. 542.
189 Okla. 235, 115 P.2d 123, reversed.
Page 316 U. S. 536
CERTIORARI, 315 U.S. 789, to review the affirmance of a judgment in a proceeding
under the Oklahoma Habitual Criminal Sterilization Act, wherein it was ordered
that the defendant (petitioner here) be made sterile.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case touches a sensitive and important area of human rights. Oklahoma depri
ves certain individuals of a right which is basic to the perpetuation of a race
the right to have offspring. Oklahoma has decreed the enforcement of its law aga
inst petitioner, overruling his claim that it violated the Fourteenth Amendment.
Because that decision raised grave and substantial constitutional questions, we
granted the petition for certiorari.
The statute involved is Oklahoma's Habitual Criminal Sterilization Act. Okla.Sta
t.Ann. Tit. 57, §§ 171, et seq.; L.1935, pp. 94 et seq. That Act defines an "habitua
l criminal" as a person who, having been convicted two or more times for crimes
"amounting to felonies involving moral turpitude," either in an Oklahoma court o
r in a court of any other State, is thereafter convicted of such a felony in Okl
ahoma and is sentenced to a term of imprisonment in an Oklahoma penal institutio
n. § 173. Machinery is provided for the institution by the Attorney General of a p
roceeding against such a person in the Oklahoma courts for a judgment that such
person shall be rendered sexually sterile. §§ 176, 177. Notice, an opportunity to be
heard, and the right to a jury trial are provided. §§ 177-181. The issues triable i
n such a proceeding are narrow and confined.
Page 316 U. S. 537
If the court or jury finds that the defendant is an "habitual criminal" and that
he "may be rendered sexually sterile without detriment to his or her general he
alth," then the court "shall render judgment to the effect that said defendant b
e rendered sexually sterile" (§ 182) by the operation of vasectomy in case of a ma
le, and of salpingectomy in case of a female. § 174. Only one other provision of t
he Act is material here, and that is § 195, which provides that
"offenses arising out of the violation of the prohibitory laws, revenue acts, em
bezzlement, or political offenses, shall not come or be considered within the te
rms of this Act."
Petitioner was convicted in 1926 of the crime of stealing chickens, and was sent
enced to the Oklahoma State Reformatory. In 1929 he was convicted of the crime o
f robbery with firearms, and was sentenced to the reformatory. In 1934, he was c
onvicted again of robbery with firearms, and was sentenced to the penitentiary.
He was confined there in 1935 when the Act was passed. In 1936, the Attorney Gen
eral instituted proceedings against him. Petitioner, in his answer, challenged t
he Act as unconstitutional by reason of the Fourteenth Amendment. A jury trial w
as had. The court instructed the jury that the crimes of which petitioner had be
en convicted were felonies involving moral turpitude, and that the only question
for the jury was whether the operation of vasectomy could be performed on petit
ioner without detriment to his general health. The jury found that it could be.
A judgment directing that the operation of vasectomy be performed on petitioner
was affirmed by the Supreme Court of Oklahoma by a five-to-four decision. 189 Ok
la. 235, 115 P.2d 123.
Several objections to the constitutionality of the Act have been pressed upon us
. It is urged that the Act cannot be sustained as an exercise of the police powe
r, in view
Page 316 U. S. 538
of the state of scientific authorities respecting inheritability of criminal tra
its. [Footnote 1] It is argued that due process is lacking because, under this A
ct, unlike the Act [Footnote 2] upheld in Buck v. Bell, 274 U. S. 200, the defen
dant is given no opportunity to be heard on the issue as to whether he is the pr
obable potential parent of socially undesirable offspring. See Davis v. Berry, 2
16 F.4d 3; Williams v. Smith, 190 Ind. 526, 131 N.E. 2. It is also suggested tha
t the Act is penal in character, and that the sterilization provided for is crue
l and unusual punishment and violative of the Fourteenth Amendment. See Davis v.
Berry, supra. Cf. State v. Felen, 70 Wash. 65, 126 P. 75; Mickle v. Henrichs, 2
62 F.6d 7. We pass those points without intimating an opinion on them, for there
is a feature of the Act which clearly condemns it. That is its failure to meet
the requirements of the equal protection clause of the Fourteenth Amendment.
We do not stop to point out all of the inequalities in this Act. A few examples
will suffice. In Oklahoma, grand larceny is a felony. Okla.Stats.Ann. Tit. 21, §§ 17
05, 5. Larceny is grand larceny when the property taken exceeds $20 in value. Id
., § 1704. Embezzlement is punishable "in the manner prescribed for feloniously st
ealing property of the value of that embezzled." Id., § 1462. Hence, he who embezz
les property worth more than $20 is guilty of a felony. A clerk who appropriates
over $20 from his employer's till (id. § 1456) and a stranger who steals the same
Page 316 U. S. 539
amount are thus both guilty of felonies. If the latter repeats his act and is co
nvicted three times, he may be sterilized. But the clerk is not subject to the p
ains and penalties of the Act no matter how large his embezzlements nor how freq
uent his convictions. A person who enters a chicken coop and steals chickens com
mits a felony (id., § 1719), and he may be sterilized if he is thrice convicted. I
f, however, he is a bailee of the property and fraudulently appropriates it, he
is an embezzler. Id., § 1455. Hence, no matter how habitual his proclivities for e
mbezzlement are, and no matter how often his conviction, he may not be sterilize
d. Thus, the nature of the two crimes is intrinsically the same, and they are pu
nishable in the same manner. Furthermore, the line between them follows close di
stinctions -- distinctions comparable to those highly technical ones which shape
d the common law as to "trespass" or "taking." Bishop, Criminal Law (9th ed.) Vo
l. 2, §§ 760, 799, et seq. There may be larceny by fraud, rather than embezzlement e
ven where the owner of the personal property delivers it to the defendant, if th
e latter has, at that time, "a fraudulent intention to make use of the possessio
n as a means of converting such property to his own use, and does so convert it.
" Bivens v. State, 6 Okla.Cr. 521, 529, 120 P. 1033, 1036. If the fraudulent int
ent occurs later, and the defendant converts the property, he is guilty of embez
zlement. Bivens v. State, supra; Flohr v. Territory, 14 Okla. 477, 78 P. 565. Wh
ether a particular act is larceny by fraud or embezzlement thus turns not on the
intrinsic quality of the act, but on when the felonious intent arose -- a quest
ion for the jury under appropriate instructions. Bivens v. State, supra; Riley v
. State, 64 Okla.Cr. 183, 78 P.2d 712.
It was stated in Buck v. Bell, supra, that the claim that state legislation viol
ates the equal protection clause of the Fourteenth Amendment is "the usual last
resort of constitutional arguments." 274 U.S. p. 274 U. S. 208. Under our consti
tutional
Page 316 U. S. 540
system, the States, in determining the reach and scope of particular legislation
, need not provide "abstract symmetry." Patsone v. Pennsylvania, 232 U. S. 138,
232 U. S. 144. They may mark and set apart the classes and types of problems acc
ording to the needs and as dictated or suggested by experience. See Bryant v. Zi
mmerman, 278 U. S. 63, and cases cited. It was in that connection that Mr. Justi
ce Holmes, speaking for the Court in Bain Peanut Co. v. Pinson, 282 U. S. 499, 2
82 U. S. 501, stated, "We must remember that the machinery of government would n
ot work if it were not allowed a little play in its joints." Only recently, we r
eaffirmed the view that the equal protection clause does not prevent the legisla
ture from recognizing "degrees of evil" (Truax v. Raich, 239 U. S. 33, 239 U. S.
43) by our ruling in Tigner v. Texas, 310 U. S. 141, 310 U. S. 147, that "the C
onstitution does not require things which are different, in fact, or opinion to
be treated in law as though they were the same." And see Nashville, C. & St.L. R
y. v. Browning, 310 U. S. 362. Thus, if we had here only a question as to a Stat
e's classification of crimes, such as embezzlement or larceny, no substantial fe
deral question would be raised. See Moore v. Missouri, 159 U. S. 673; Hawker v.
New York, 170 U. S. 189; Finley v. California, 222 U. S. 28; Patsone v. Pennsylv
ania, supra. For a State is not constrained in the exercise of its police power
to ignore experience which marks a class of offenders or a family of offenses fo
r special treatment. Nor is it prevented by the equal protection clause from con
fining "its restrictions to those classes of cases where the need is deemed to b
e clearest." Miller v. Wilson, 236 U. S. 373, 236 U. S. 384. And see McLean v. A
rkansas, 211 U. S. 539. As stated in Buck v. Bell, supra, p. 274 U. S. 208,
". . . the law does all that is needed when it does all that it can, indicates a
policy, applies it to all within the lines, and seeks to bring within the lines
all similarly situated so far and so fast as its means allow. "
Page 316 U. S. 541
But the instant legislation runs afoul of the equal protection clause, though we
give Oklahoma that large deference which the rule of the foregoing cases requir
es. We are dealing here with legislation which involves one of the basic civil r
ights of man. Marriage and procreation are fundamental to the very existence and
survival of the race. The power to sterilize, if exercised, may have subtle, fa
r-reaching and devastating effects. In evil or reckless hands, it can cause race
s or types which are inimical to the dominant group to wither and disappear. The
re is no redemption for the individual whom the law touches. Any experiment whic
h the State conducts is to his irreparable injury. He is forever deprived of a b
asic liberty. We mention these matters not to reexamine the scope of the police
power of the States. We advert to them merely in emphasis of our view that stric
t scrutiny of the classification which a State makes in a sterilization law is e
ssential, lest unwittingly, or otherwise, invidious discriminations are made aga
inst groups or types of individuals in violation of the constitutional guaranty
of just and equal laws. The guaranty of "equal protection of the laws is a pledg
e of the protection of equal laws." Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S.
369. When the law lays an unequal hand on those who have committed intrinsicall
y the same quality of offense and sterilizes one and not the other, it has made
as invidious a discrimination as if it had selected a particular race or nationa
lity for oppressive treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada, 305
U. S. 337. Sterilization of those who have thrice committed grand larceny, with
immunity for those who are embezzlers, is a clear, pointed, unmistakable discrim
ination. Oklahoma makes no attempt to say that he who commits larceny by trespas
s or trick or fraud has biologically inheritable traits which he who commits emb
ezzlement lacks. Oklahoma's line between larceny by fraud and embezzlement is de
termined, as we have noted, "with reference to the time when the
Page 316 U. S. 542
fraudulent intent to convert the property to the taker's own use" arises. Riley
v. State, supra, 64 Okla.Cr. at p. 189, 78 P.2d p. 715. We have not the slightes
t basis for inferring that that line has any significance in eugenics, nor that
the inheritability of criminal traits follows the neat legal distinctions which
the law has marked between those two offenses. In terms of fines and imprisonmen
t, the crimes of larceny and embezzlement rate the same under the Oklahoma code.
Only when it comes to sterilization are the pains and penalties of the law diff
erent. The equal protection clause would indeed be a formula of empty words if s
uch conspicuously artificial lines could be drawn. See Smith v. Wayne Probate Ju
dge, 231 Mich. 409, 420-421, 204 N.W. 40. In Buck v. Bell, supra, the Virginia s
tatute was upheld though it applied only to feeble-minded persons in institution
s of the State. But it was pointed out that,
"so far as the operations enable those who otherwise must be kept confined to be
returned to the world, and thus open the asylum to others, the equality aimed a
t will be more nearly reached."
274 U.S. p. 274 U. S. 208. Here there is no such saving feature. Embezzlers are
forever free. Those who steal or take in other ways are not. If such a classific
ation were permitted, the technical common law concept of a "trespass" (Bishop,
Criminal Law, 9th ed., vol. 1, §§ 566, 567) based on distinctions which are "very la
rgely dependent upon history for explanation" (Holmes, The Common Law, p. 73) co
uld readily become a rule of human genetics.
It is true that the Act has a broad severability clause. [Footnote 3] But we wil
l not endeavor to determine whether its application
Page 316 U. S. 543
would solve the equal protection difficulty. The Supreme Court of Oklahoma susta
ined the Act without reference to the severability clause. We have therefore a s
ituation where the Act, as construed and applied to petitioner, is allowed to pe
rpetuate the discrimination which we have found to be fatal. Whether the severab
ility clause would be so applied as to remove this particular constitutional obj
ection is a question which may be more appropriately left for adjudication by th
e Oklahoma court. Dorchy v. Kansas, 264 U. S. 286. That is reemphasized here by
our uncertainty as to what excision, if any, would be made as a matter of Oklaho
ma law. Cf. Smith v. Cahoon, 283 U. S. 553. It is by no means clear whether, if
an excision were made, this particular constitutional difficulty might be solved
by enlarging, on the one hand, or contracting, on the other (cf. Mr. Justice Br
andeis dissenting, National Life Ins. Co. v. United States, 277 U. S. 508, 277 U
. S. 534-535) the class of criminals who might be sterilized.
Reversed.
[Footnote 1]
Healy, The Individual Delinquent (1915), pp. 188-200; Sutherland, Criminology (1
924), pp. 112-118, 621-622; Gillin, Criminology and Penology (1926), c. IX; Pope
noe, Sterilization and Criminality, 53 Rep.Am.Bar Assoc. 575; Myerson et al., Eu
genical Sterilization (1936), c. VIII; Landman, Human Sterilization (1932), c. I
X; Summary of the Report of the American Neurological Association Committee for
the Investigation of Sterilization, 1 Am.Journ.Med.Jur. 253 (1938).
[Footnote 2]
And see State v. Troutman, 50 Ida. 673, 299 P. 668; Chamberlain, Eugenics in Leg
islatures and Courts, 15 Am.Bar Assn.Journ. 165; Castle, The Law and Human Steri
lization, 53 Rep.Am.Bar Assoc., 556, 572; 2 Bill of Rights Review 54.
[Footnote 3]
Sec.194 provides:
"If any section, subsection, paragraph, sentence, clause or phrase of this Act s
hall be declared unconstitutional, or void for any other reason by any court of
final jurisdiction, such fact shall not in any manner invalidate or affect any o
ther or the remaining portions of this Act, but the same shall continue in full
force and effect. The Legislature hereby declares that it would have passed this
Act, and each section, subsection, paragraph, sentence, clause or phrase thereo
f, irrespective of the fact that any one or more other sections, sub-sections, p
aragraphs, sentences, clauses or phrases be declared unconstitutional."
MR. CHIEF JUSTICE STONE, concurring:
I concur in the result, but I am not persuaded that we are aided in reaching it
by recourse to the equal protection clause.
If Oklahoma may resort generally to the sterilization of criminals on the assump
tion that their propensities are transmissible to future generations by inherita
nce, I seriously doubt that the equal protection clause requires it to apply the
measure to all criminals in the first instance, or to none. See Rosenthal v. Ne
w York, 226 U. S. 260, 226 U. S. 271;
Page 316 U. S. 544
Keokee Coke Co. v. Taylor, 234 U. S. 224, 234 U. S. 227; Patsone v. Pennsylvania
, 232 U. S. 138, 232 U. S. 144.
Moreover, if we must presume that the legislature knows -- what science has been
unable to ascertain -- that the criminal tendencies of any class of habitual of
fenders are transmissible regardless of the varying mental characteristics of it
s individuals, I should suppose that we must likewise presume that the legislatu
re, in its wisdom, knows that the criminal tendencies of some classes of offende
rs are more likely to be transmitted than those of others. And so I think the re
al question we have to consider is not one of equal protection, but whether the
wholesale condemnation of a class to such an invasion of personal liberty, witho
ut opportunity to any individual to show that his is not the type of case which
would justify resort to it, satisfies the demands of due process.
There are limits to the extent to which the presumption of constitutionality can
be pressed, especially where the liberty of the person is concerned (see United
States v. Carolene Products Co., 304 U. S. 144, 304 U. S. 152, n. 4) and where
the presumption is resorted to only to dispense with a procedure which the ordin
ary dictates of prudence would seem to demand for the protection of the individu
al from arbitrary action. Although petitioner here was given a hearing to ascert
ain whether sterilization would be detrimental to his health, he was given none
to discover whether his criminal tendencies are of an inheritable type. Undoubte
dly, a state may, after appropriate inquiry, constitutionally interfere with the
personal liberty of the individual to prevent the transmission by inheritance o
f his socially injurious tendencies. Buck v. Bell, 274 U. S. 200. But, until now
, we have not been called upon to say that it may do so without giving him a hea
ring and opportunity to challenge the existence as to him of the only facts whic
h could justify so drastic a measure.
Page 316 U. S. 545
Science has found, and the law has recognized, that there are certain types of m
ental deficiency associated with delinquency which are inheritable. But the Stat
e does not contend -- nor can there be any pretense -- that either common knowle
dge or experience, or scientific investigation, 316 U. S. 90, and cases cited; T
aylor v. Georgia, 315 U. S. 25. And so, while the state may protect itself from
the demonstrably inheritable tendencies of the individual which are injurious to
society, the most elementary notions of due process would seem to require it to
take appropriate steps to safeguard the liberty of the individual by affording
him, before he is condemned to an irreparable injury in his person, some opportu
nity to show that he is without such inheritable tendencies. The state is called
on to sacrifice no permissible end when it is required to reach its objective b
y a reasonable and just procedure adequate to safeguard rights of the individual
which concededly the Constitution protects.
Page 316 U. S. 546
* See Eugenical Sterilization, A Report of the Committee of the American Neurolo
gical Association (1936), pp.150-52; Myerson, Summary of the Report, 1 American
Journal of Medical Jurisprudence 253; Popenoe, Sterilization and Criminality, 53
American Bar Assn. Reports 575; Jennings, Eugenics, 5 Encyclopedia of the Socia
l Sciences 617, 6221; Montagu, The Biologist Looks at Crime, 217 Annals of Ameri
can Academy of Political and Social Science 46.
MR JUSTICE JACKSON concurring:
I join the CHIEF JUSTICE in holding that the hearings provided are too limited i
n the context of the present Act to afford due process of law. I also agree with
the opinion of MR. JUSTICE DOUGLAS that the scheme of classification set forth
in the Act denies equal protection of the law. I disagree with the opinion of ea
ch insofar as it rejects or minimizes the grounds taken by the other.
Perhaps to employ a broad and loose scheme of classification would be permissibl
e if accompanied by the individual hearings indicated by the CHIEF JUSTICE. On t
he other hand, narrow classification with reference to the end to be accomplishe
d by the Act might justify limiting individual hearings to the issue whether the
individual belonged to a class so defined. Since this Act does not present thes
e questions, I reserve judgment on them.
I also think the present plan to sterilize the individual in pursuit of a eugeni
c plan to eliminate from the race characteristics that are only vaguely identifi
ed and which, in our present state of knowledge, are uncertain as to transmissib
ility presents other constitutional questions of gravity. This Court has sustain
ed such an experiment with respect to an imbecile, a person with definite and ob
servable characteristics, where the condition had persisted through three genera
tions and afforded grounds for the belief that it was transmissible, and would c
ontinue to manifest itself in generations to come. Buck v. Bell, 274 U. S. 200.
There are limits to the extent to which a legislatively represented majority may
conduct biological experiments at the expense of the dignity and personality an
d natural powers of a minority -- even those who have been guilty of what the ma
jority define as crimes. But this Act falls down before reaching this problem, w
hich I mention only to
Page 316 U. S. 547
avoid the implication that such a question may not exist because not discussed.
On it, I would also reserve judgment.
Griswold v. Connecticut, 381 U.S. 479 (1965)
Griswold v. Connecticut
No. 496
Argued March 29-30, 1965
Decided June 7, 1965
381 U.S. 479
APPEAL FROM THE SUPREME COURT
OF ERRORS OF CONNECTICUT
Syllabus
Appellants, the Executive Director of the Planned Parenthood League of Connectic
ut, and its medical director, a licensed physician, were convicted as accessorie
s for giving married persons information and medical advice on how to prevent co
nception and, following examination, prescribing a contraceptive device or mater
ial for the wife's use. A Connecticut statute makes it a crime for any person to
use any drug or article to prevent conception. Appellants claimed that the acce
ssory statute, as applied, violated the Fourteenth Amendment. An intermediate ap
pellate court and the State's highest court affirmed the judgment.
Held:
1. Appellants have standing to assert the constitutional rights of the married p
eople. Tileston v. Ullman, 318 U. S. 44, distinguished. P. 381 U. S. 481.
2. The Connecticut statute forbidding use of contraceptives violates the right o
f marital privacy which is within the penumbra of specific guarantees of the Bil
l of Rights. Pp. 381 U. S. 481-486.
151 Conn. 544, 200 A.2d 479, reversed.
Page 381 U. S. 480
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Appellant Griswold is Executive Director of the Planned Parenthood League of Con
necticut. Appellant Buxton is a licensed physician and a professor at the Yale M
edical School who served as Medical Director for the League at its Center in New
Haven -- a center open and operating from November 1 to November 10, 1961, when
appellants were arrested.
They gave information, instruction, and medical advice to married persons as to
the means of preventing conception. They examined the wife and prescribed the be
st contraceptive device or material for her use. Fees were usually charged, alth
ough some couples were serviced free.
The statutes whose constitutionality is involved in this appeal are §§ 53-32 and 54-
196 of the General Statutes of Connecticut (1958 rev.). The former provides:
"Any person who uses any drug, medicinal article or instrument for the purpose o
f preventing conception shall be fined not less than fifty dollars or imprisoned
not less than sixty days nor more than one year or be both fined and imprisoned
."
Section 54-196 provides:
"Any person who assists, abets, counsels, causes, hires or commands another to c
ommit any offense may be prosecuted and punished as if he were the principal off
ender."
The appellants were found guilty as accessories and fined $100 each, against the
claim that the accessory statute, as so applied, violated the Fourteenth Amendm
ent. The Appellate Division of the Circuit Court affirmed. The Supreme Court of
Errors affirmed that judgment. 151 Conn. 544, 200 A.2d 479. We noted probable ju
risdiction. 379 U.S. 926.
Page 381 U. S. 481
We think that appellants have standing to raise the constitutional rights of the
married people with whom they had a professional relationship. Tileston v. Ullm
an, 318 U. S. 44, is different, for there the plaintiff seeking to represent oth
ers asked for a declaratory Judgment. In that situation, we thought that the req
uirements of standing should be strict, lest the standards of "case or controver
sy" in Article III of the Constitution become blurred. Here, those doubts are re
moved by reason of a criminal conviction for serving married couples in violatio
n of an aiding-and-abetting statute. Certainly the accessory should have standin
g to assert that the offense which he is charged with assisting is not, or canno
t constitutionally be, a crime.
This case is more akin to Truax v. Raich, 239 U. S. 33, where an employee was pe
rmitted to assert the rights of his employer; to Pierce v. Society of Sisters, 2
68 U. S. 510, where the owners of private schools were entitled to assert the ri
ghts of potential pupils and their parents, and to Barrows v. Jackson, 346 U. S.
249, where a white defendant, party to a racially restrictive covenant, who was
being sued for damages by the covenantors because she had conveyed her property
to Negroes, was allowed to raise the issue that enforcement of the covenant vio
lated the rights of prospective Negro purchasers to equal protection, although n
o Negro was a party to the suit. And see Meyer v. Nebraska, 262 U. S. 390; Adler
v. Board of Education, 342 U. S. 485; NAACP v. Alabama, 357 U. S. 449; NAACP v.
Button, 371 U. S. 415. The rights of husband and wife, pressed here, are likely
to be diluted or adversely affected unless those rights are considered in a sui
t involving those who have this kind of confidential relation to them.
Coming to the merits, we are met with a wide range of questions that implicate t
he Due Process Clause of the Fourteenth Amendment. Overtones of some arguments
Page 381 U. S. 482
suggest that Lochner v. New York, 198 U. S. 45, should be our guide. But we decl
ine that invitation, as we did in West Coast Hotel Co. v. Parrish, 300 U. S. 379
; Olsen v. Nebraska, 313 U. S. 236; Lincoln Union v. Northwestern Co., 335 U. S.
525; Williamson v. Lee Optical Co., 348 U. S. 483; Giboney v. Empire Storage Co
., 336 U. S. 490. We do not sit as a super-legislature to determine the wisdom,
need, and propriety of laws that touch economic problems, business affairs, or s
ocial conditions. This law, however, operates directly on an intimate relation o
f husband and wife and their physician's role in one aspect of that relation.
The association of people is not mentioned in the Constitution nor in the Bill o
f Rights. The right to educate a child in a school of the parents' choice -- whe
ther public or private or parochial -- is also not mentioned. Nor is the right t
o study any particular subject or any foreign language. Yet the First Amendment
has been construed to include certain of those rights.
By Pierce v. Society of Sisters, supra, the right to educate one's children as o
ne chooses is made applicable to the States by the force of the First and Fourte
enth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the righ
t to study the German language in a private school. In other words, the State ma
y not, consistently with the spirit of the First Amendment, contract the spectru
m of available knowledge. The right of freedom of speech and press includes not
only the right to utter or to print, but the right to distribute, the right to r
eceive, the right to read (Martin v. Struthers, 319 U. S. 141, 319 U. S. 143) an
d freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann v. U
pdegraff, 344 U. S. 183, 344 U. S. 195) -- indeed, the freedom of the entire uni
versity community. Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 249-250, 35
4 U. S. 261-263; Barenblatt v. United States, 360 U. S. 109, 360 U. S. 112; Bagg
ett v. Bullitt, 377 U. S. 360, 377 U. S. 369. Without
Page 381 U. S. 483
those peripheral rights, the specific rights would be less secure. And so we rea
ffirm the principle of the Pierce and the Meyer cases.
In NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462 we protected the "freedom to a
ssociate and privacy in one's associations," noting that freedom of association
was a peripheral First Amendment right. Disclosure of membership lists of a cons
titutionally valid association, we held, was invalid
"as entailing the likelihood of a substantial restraint upon the exercise by pet
itioner's members of their right to freedom of association."
Ibid. In other words, the First Amendment has a penumbra where privacy is protec
ted from governmental intrusion. In like context, we have protected forms of "as
sociation" that are not political in the customary sense, but pertain to the soc
ial, legal, and economic benefit of the members. NAACP v. Button, 371 U. S. 415,
371 U. S. 430-431. In Schware v. Board of Bar Examiners, 353 U. S. 232, we held
it not permissible to bar a lawyer from practice because he had once been a mem
ber of the Communist Party. The man's "association with that Party" was not show
n to be "anything more than a political faith in a political party" (id. at 353
U. S. 244), and was not action of a kind proving bad moral character. Id. at 353
U. S. 245-246.
Those cases involved more than the "right of assembly" -- a right that extends t
o all, irrespective of their race or ideology. De Jonge v. Oregon, 299 U. S. 353
. The right of "association," like the right of belief (Board of Education v. Ba
rnette, 319 U. S. 624), is more than the right to attend a meeting; it includes
the right to express one's attitudes or philosophies by membership in a group or
 by affiliation with it or by other lawful means. Association in that context is
a form of expression of opinion, and, while it is not expressly included in the
First Amendment, its existence is necessary in making the express guarantees fu
lly meaningful.
Page 381 U. S. 484
The foregoing cases suggest that specific guarantees in the Bill of Rights have
penumbras, formed by emanations from those guarantees that help give them life a
nd substance. See Poe v. Ullman, 367 U. S. 497, 367 U. S. 516-522 (dissenting op
inion). Various guarantees create zones of privacy. The right of association con
tained in the penumbra of the First Amendment is one, as we have seen. The Third
Amendment, in its prohibition against the quartering of soldiers "in any house"
in time of peace without the consent of the owner, is another facet of that pri
vacy. The Fourth Amendment explicitly affirms the "right of the people to be sec
ure in their persons, houses, papers, and effects, against unreasonable searches
and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables t
he citizen to create a zone of privacy which government may not force him to sur
render to his detriment. The Ninth Amendment provides: "The enumeration in the C
onstitution, of certain rights, shall not be construed to deny or disparage othe
rs retained by the people."
The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.
S. 616, 116 U. S. 630, as protection against all governmental invasions "of the
sanctity of a man's home and the privacies of life." 381 U. S. 656, to the Fourt
h Amendment as creating a "right to privacy, no less important than any other ri
ght carefully an particularly reserved to the people." See Beaney, The Constitut
ional Right to Privacy, 1962 Sup.Ct.Rev. 212; Griswold, The Right to be Let Alon
e, 55 Nw.U.L.Rev. 216 (1960).
We have had many controversies over these penumbral rights of "privacy and repos
e." See, e.g., Breard v. Alexandria, 341 U. S. 622, 341 U. S. 626, 341 U. S. 644
; Public Utilities Comm'n v. Pollak, 343 U. S. 451; Monroe v. Pape, 365 U. S. 16
7; Lanza v. New York, 370 U. S. 139; Frank v. Maryland, 359 U. S. 360; Skinner v
. Oklahoma, 316 U. S. 535, 316 U. S. 541. These cases bear witness that the righ
t of privacy which presses for recognition here is a legitimate one.
The present case, then, concerns a relationship lying within the zone of privacy
created by several fundamental constitutional guarantees. And it concerns a law
which, in forbidding the use of contraceptives, rather than regulating their ma
nufacture or sale, seeks to achieve its goals by means having a maximum destruct
ive impact upon that relationship. Such a law cannot stand in light of the famil
iar principle, so often applied by this Court, that a
"governmental purpose to control or prevent activities constitutionally subject
to state regulation may not be achieved by means which sweep unnecessarily broad
ly and thereby invade the area of protected freedoms."
NAACP v. Alabama, 377 U. S. 288, 377 U. S. 307. Would we allow the police to sea
rch the sacred precincts of marital bedrooms for telltale signs of the use of co
ntraceptives? The
Page 381 U. S. 486
very idea is repulsive to the notions of privacy surrounding the marriage relati
onship.
We deal with a right of privacy older than the Bill of Rights -- older than our
political parties, older than our school system. Marriage is a coming together f
or better or for worse, hopefully enduring, and intimate to the degree of being
sacred. It is an association that promotes a way of life, not causes; a harmony
in living, not political faiths; a bilateral loyalty, not commercial or social p
rojects. Yet it is an association for as noble a purpose as any involved in our
prior decisions.
Reversed.
* The Court said in full about this right of privacy:
"The principles laid down in this opinion [by Lord Camden in Entick v. Carringto
n, 19 How.St.Tr. 1029] affect the very essence of constitutional liberty and sec
urity. They reach farther than the concrete form of the case then before the cou
rt, with its adventitious circumstances; they apply to all invasions on the part
of the government and its employes of the sanctity of a man's home and the priv
acies of life. It is not the breaking of his doors, and the rummaging of his dra
wers, that constitutes the essence of the offence; but it is the invasion of his
indefeasible right of personal security, personal liberty and private property,
where that right has never been forfeited by his conviction of some public offe
nce -- it is the invasion of this sacred right which underlies and constitutes t
he essence of Lord Camden's judgment. Breaking into a house and opening boxes an
d drawers are circumstances of aggravation; but any forcible and compulsory exto
rtion of a man's own testimony or of his private papers to be used as evidence t
o convict him of crime or to forfeit his goods is within the condemnation of tha
t judgment. In this regard, the Fourth and Fifth Amendments run almost into each
other."
116 U.S. at 116 U. S. 630.
MR. JUSTICE GOLDBERG, whom THE CHIEF JUSTICE and MR. JUSTICE BRENNAN join, concu
rring.
I agree with the Court that Connecticut's birth control law unconstitutionally i
ntrudes upon the right of marital privacy, and I join in its opinion and judgmen
t. Although I have not accepted the view that "due process," as used in the Four
teenth Amendment, incorporates all of the first eight Amendments (see my concurr
ing opinion in Pointer v. Texas, 380 U. S. 400, 380 U. S. 410, and the dissentin
g opinion of MR. JUSTICE BRENNAN in Cohen v. Hurley, 366 U. S. 117, 366 U. S. 15
4), I do agree that the concept of liberty protects those personal rights that a
re fundamental, and is not confined to the specific terms of the Bill of Rights.
My conclusion that the concept of liberty is not so restricted, and that it emb
races the right of marital privacy, though that right is not mentioned explicitl
y in the Constitution, [Footnote 1] is supported both by numerous
Page 381 U. S. 487
decisions of this Court, referred to in the Court's opinion, and by the language
and history of the Ninth Amendment. In reaching the conclusion that the right o
f marital privacy is protected as being within the protected penumbra of specifi
c guarantees of the Bill of Rights, the Court refers to the Ninth Amendment, ant
e at 381 U. S. 484. I add these words to emphasize the relevance of that Amendme
nt to the Court's holding.
The Court stated many years ago that the Due Process Clause protects those liber
ties that are "so rooted in the traditions and conscience of our people as to be
ranked as fundamental." Snyder v. Massachusetts, 291 U. S. 7, 291 U. S. 105. In
Gitlow v. New York, 268 U. S. 652, 268 U. S. 666, the Court said:
"For present purposes, we may and do assume that freedom of speech and of the pr
ess -- which are protected by the First Amendment from abridgment by Congress --
are among the fundamental personal rights and 'liberties' protected by the due
process clause of the Fourteenth Amendment from impairment by the States."
(Emphasis added.)
Page 381 U. S. 488
And, in Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 399, the Court, referring to
the Fourteenth Amendment, stated:
"While this Court has not attempted to define with exactness the liberty thus gu
aranteed, the term has received much consideration, and some of the included thi
ngs have been definitely stated. Without doubt, it denotes not merely freedom fr
om bodily restraint, but also [for example,] the right . . . to marry, establish
a home and bring up children. . . ."
This Court, in a series of decisions, has held that the Fourteenth Amendment abs
orbs and applies to the States those specifics of the first eight amendments whi
ch express fundamental personal rights. [Footnote 2] The language and history of
the Ninth Amendment reveal that the Framers of the Constitution believed that t
here are additional fundamental rights, protected from governmental infringement
, which exist alongside those fundamental rights specifically mentioned in the f
irst eight constitutional amendments. The Ninth Amendment reads, "The enumeratio
n in the Constitution, of certain rights, shall not be construed to deny or disp
arage others retained by the people." The Amendment is almost entirely the work
of James Madison. It was introduced in Congress by him, and passed the House and
Senate with little or no debate and virtually no change in language. It was pro
ffered to quiet expressed fears that a bill of specifically enumerated rights [F
ootnote 3] could not be sufficiently broad to cover all essential
Page 381 U. S. 489
rights, and that the specific mention of certain rights would be interpreted as
a denial that others were protected. [Footnote 4]
In presenting the proposed Amendment, Madison said:
"It has been objected also against a bill of rights that, by enumerating particu
lar exceptions to the grant of power, it would disparage those rights which were
not placed in that enumeration, and it might follow, by implication, that those
rights which were not singled out were intended to be assigned into the hands o
f the General Government, and were consequently insecure. This is one of the mos
t plausible arguments I have ever heard urged against the admission of a bill of
rights into this system, but I conceive that it may be guarded against. I have
attempted it, as gentlemen may see by turning to the
Page 381 U. S. 490
last clause of the fourth resolution [the Ninth Amendment]."
I Annals of Congress 439 (Gales and Seaton ed. 1834). Mr. Justice Story wrote of
this argument against a bill of rights and the meaning of the Ninth Amendment:
"In regard to . . . [a] suggestion, that the affirmance of certain rights might
disparage others, or might lead to argumentative implications in favor of other
powers, it might be sufficient to say that such a course of reasoning could neve
r be sustained upon any solid basis. . . . But a conclusive answer is that such
an attempt may be interdicted (as it has been) by a positive declaration in such
a bill of rights that the enumeration of certain rights shall not be construed
to deny or disparage others retained by the people."
II Story, Commentaries on the Constitution of the United States 626-627 (5th ed.
1891). He further stated, referring to the Ninth Amendment:
"This clause was manifestly introduced to prevent any perverse or ingenious misa
pplication of the well known maxim that an affirmation in particular cases impli
es a negation in all others, and, e converso, that a negation in particular case
s implies an affirmation in all others."
Id. at 651. These statements of Madison and Story make clear that the Framers di
d not intend that the first eight amendments be construed to exhaust the basic a
nd fundamental rights which the Constitution guaranteed to the people. [Footnote
5]
While this Court has had little occasion to interpret the Ninth Amendment, [Foot
note 6] "[i]t cannot be presumed that any
Page 381 U. S. 491
clause in the constitution is intended to be without effect." 5 U. S. 174. In in
terpreting the Constitution, "real effect should be given to all the words it us
es." Myers v. United States, 272 U. S. 52, 272 U. S. 151. The Ninth Amendment to
the Constitution may be regarded by some as a recent discovery, and may be forg
otten by others, but, since 1791, it has been a basic part of the Constitution w
hich we are sworn to uphold. To hold that a right so basic and fundamental and s
o deep-rooted in our society as the right of privacy in marriage may be infringe
d because that right is not guaranteed in so many words by the first eight amend
ments to the Constitution is to ignore the Ninth Amendment, and to give it no ef
fect whatsoever. Moreover, a judicial construction that this fundamental right i
s not protected by the Constitution because it is not mentioned in explicit term
s by one of the first eight amendments or elsewhere in the Constitution would vi
olate the Ninth Amendment, which specifically states that
Page 381 U. S. 492
"[t]he enumeration in the Constitution, of certain rights, shall not be construe
d@ to deny or disparage others retained by the people." (Emphasis added.)
A dissenting opinion suggests that my interpretation of the Ninth Amendment some
how "broaden[s] the powers of this Court." Post at 381 U. S. 520. With all due r
espect, I believe that it misses the import of what I am saying. I do not take t
he position of my Brother BLACK in his dissent in Adamson v. California, 332 U.
S. 46, 332 U. S. 68, that the entire Bill of Rights is incorporated in the Fourt
eenth Amendment, and I do not mean to imply that the Ninth Amendment is applied
against the States by the Fourteenth. Nor do I mean to state that the Ninth Amen
dment constitutes an independent source of rights protected from infringement by
either the States or the Federal Government. Rather, the Ninth Amendment shows
a belief of the Constitution's authors that fundamental rights exist that are no
t expressly enumerated in the first eight amendments, and an intent that the lis
t of rights included there not be deemed exhaustive. As any student of this Cour
t's opinions knows, this Court has held, often unanimously, that the Fifth and F
ourteenth Amendments protect certain fundamental personal liberties from abridgm
ent by the Federal Government or the States. See, e.g., Bolling v. Sharpe, 347 U
. S. 497; Aptheker v. Secretary of State, 378 U. S. 500; Kent v. Dulles, 357 U.
S. 116, Cantwell v. Connecticut, 310 U. S. 296; NAACP v. Alabama, 357 U. S. 449;
Gideon v. Wainwright, 372 U. S. 335; New York Times Co. v. Sullivan, 376 U. S.
254. The Ninth Amendment simply shows the intent of the Constitution's authors t
hat other fundamental personal rights should not be denied such protection or di
sparaged in any other way simply because they are not specifically listed in the
first eight constitutional amendments. I do not see how this broadens the autho
rity
Page 381 U. S. 493
of the Court; rather it serves to support what this Court has been doing in prot
ecting fundamental rights.
Nor am I turning somersaults with history in arguing that the Ninth Amendment is
relevant in a case dealing with a State's infringement of a fundamental right.
While the Ninth Amendment -- and indeed the entire Bill of Rights -- originally
concerned restrictions upon federal power, the subsequently enacted Fourteenth A
mendment prohibits the States as well from abridging fundamental personal libert
ies. And the Ninth Amendment, in indicating that not all such liberties are spec
ifically mentioned in the first eight amendments, is surely relevant in showing
the existence of other fundamental personal rights, now protected from state, as
well as federal, infringement. In sum, the Ninth Amendment simply lends strong
support to the view that the "liberty" protected by the Fifth and Fourteenth Ame
ndments from infringement by the Federal Government or the States is not restric
ted to rights specifically mentioned in the first eight amendments. Cf. United P
ublic Workers v. Mitchell, 330 U. S. 75, 330 U. S. 94-95.
In determining which rights are fundamental, judges are not left at large to dec
ide cases in light of their personal and private notions. Rather, they must look
to the "traditions and [collective] conscience of our people" to determine whet
her a principle is "so rooted [there] . . . as to be ranked as fundamental." Sny
der v. Massachusetts, 291 U. S. 97, 291 U. S. 105. The inquiry is whether a righ
t involved
"is of such a character that it cannot be denied without violating those 'fundam
ental principles of liberty and justice which lie at the base of all our civil a
nd political institutions.' . . ."
Powell v. Alabama, 287 U. S. 45, 287 U. S. 67. "Liberty" also "gains content fro
m the emanations of . . . specific [constitutional] guarantees," and "from exper
ience with the requirements of a free society." @ 367 U. S. 517 (dissenting opin
ion of MR. JUSTICE DOUGLAS). [Footnote 7]
I agree fully with the Court that, applying these tests, the right of privacy is
a fundamental personal right, emanating "from the totality of the constitutiona
l scheme under which we live." Id. at 367 U. S. 521. Mr. Justice Brandeis, disse
nting in Olmstead v. United States, 277 U. S. 438, 277 U. S. 478, comprehensivel
y summarized the principles underlying the Constitution's guarantees of privacy:
"The protection guaranteed by the [Fourth and Fifth] Amendments is much broader
in scope. The makers of our Constitution undertook to secure conditions favorabl
e to the pursuit of happiness. They recognized the significance of man's spiritu
al nature of his feelings and of his intellect. They knew that only a part of th
e pain, pleasure and satisfactions of life are to be found in material things. T
hey sought to protect Americans in their beliefs, their thoughts, their emotions
and their sensations. They conferred, as against the Government, the right to b
e let alone -- the most comprehensive of rights and the right most valued by civ
ilized men. "
Page 381 U. S. 495
The Connecticut statutes here involved deal with a particularly important and se
nsitive area of privacy -- that of the marital relation and the marital home. Th
is Court recognized in Meyer v. Nebraska, supra, that the right "to marry, estab
lish a home and bring up children" was an essential part of the liberty guarante
ed by the Fourteenth Amendment. 262 U.S. at 262 U. S. 399. In Pierce v. Society
of Sisters, 268 U. S. 510, the Court held unconstitutional an Oregon Act which f
orbade parents from sending their children to private schools because such an ac
t "unreasonably interferes with the liberty of parents and guardians to direct t
he upbringing and education of children under their control." 268 U.S. at 268 U.
S. 534-535. As this Court said in Prince v. Massachusetts, 321 U. S. 158, at 32
1 U. S. 166, the Meyer and Pierce decisions "have respected the private realm of
family life which the state cannot enter."
I agree with MR. JUSTICE HARLAN's statement in his dissenting opinion in Poe v.
Ullman, 367 U. S. 497, 367 U. S. 551-552:
"Certainly the safeguarding of the home does not follow merely from the sanctity
of property rights. The home derives its preeminence as the seat of family life
. And the integrity of that life is something so fundamental that it has been fo
und to draw to its protection the principles of more than one explicitly granted
Constitutional right. . . . Of this whole 'private realm of family life,' it is
difficult to imagine what is more private or more intimate than a husband and w
ife's marital relations."
The entire fabric of the Constitution and the purposes that clearly underlie its
specific guarantees demonstrate that the rights to marital privacy and to marry
and raise a family are of similar order and magnitude as the fundamental rights
specifically protected.
Although the Constitution does not speak in so many words of the right of privac
y in marriage, I cannot believe that it offers these fundamental rights no prote
ction. The fact that no particular provision of the Constitution
Page 381 U. S. 496
explicitly forbids the State from disrupting the traditional relation of the fam
ily -- a relation as old and as fundamental as our entire civilization -- surely
does not show that the Government was meant to have the power to do so. Rather,
as the Ninth Amendment expressly recognizes, there are fundamental personal rig
hts such as this one, which are protected from abridgment by the Government, tho
ugh not specifically mentioned in the Constitution.
My Brother STEWART, while characterizing the Connecticut birth control law as "a
n uncommonly silly law," post at 381 U. S. 527, would nevertheless let it stand
on the ground that it is not for the courts to "substitute their social and econ
omic beliefs for the judgment of legislative bodies, who are elected to pass law
s.'" Post at 381 U. S. 528. Elsewhere, I have stated that,
"[w]hile I quite agree with Mr. Justice Brandeis that . . . 'a . . . State may .
. . serve as a laboratory, and try novel social and economic experiments,' New
State Ice Co. v. Liebmann, 285 U. S. 262, 285 U. S. 280, 285 U. S. 311 (dissenti
ng opinion), I do not believe that this includes the power to experiment with th
e fundamental liberties of citizens. . . . [Footnote 8]"
The vice of the dissenters' views is that it would permit such experimentation b
y the States in the area of the fundamental personal rights of its citizens. I c
annot agree that the Constitution grants such power either to the States or to t
he Federal Government.
The logic of the dissents would sanction federal or state legislation that seems
to me even more plainly unconstitutional than the statute before us. Surely the
Government, absent a showing of a compelling subordinating state interest, coul
d not decree that all husbands and wives must be sterilized after two children h
ave been born
Page 381 U. S. 497
to them. Yet, by their reasoning, such an invasion of marital privacy would not
be subject to constitutional challenge, because, while it might be "silly," no p
rovision of the Constitution specifically prevents the Government from curtailin
g the marital right to bear children and raise a family. While it may shock some
of my Brethren that the Court today holds that the Constitution protects the ri
ght of marital privacy, in my view, it is far more shocking to believe that the
personal liberty guaranteed by the Constitution does not include protection agai
nst such totalitarian limitation of family size, which is at complete variance w
ith our constitutional concepts. Yet if, upon a showing of a slender basis of ra
tionality, a law outlawing voluntary birth control by married persons is valid,
then, by the same reasoning, a law requiring compulsory birth control also would
seem to be valid. In my view, however, both types of law would unjustifiably in
trude upon rights of marital privacy which are constitutionally protected.
In a long series of cases, this Court has held that, where fundamental personal
liberties are involved, they may not be abridged by the States simply on a showi
ng that a regulatory statute has some rational relationship to the effectuation
of a proper state purpose.
"Where there is a significant encroachment upon personal liberty, the State may
prevail only upon showing a subordinating interest which is compelling,"
Bates v. Little Rock, 361 U. S. 516, 361 U. S. 524. The law must be shown "neces
sary, and not merely rationally related, to the accomplishment of a permissible
state policy." McLaughlin v. Florida, 379 U. S. 184, 379 U. S. 196. See Schneide
r v. Irvington, 308 U. S. 147, 308 U. S. 161.
Although the Connecticut birth control law obviously encroaches upon a fundament
al personal liberty, the State does not show that the law serves any "subordinat
ing [state] interest which is compelling," or that it is "necessary
Page 381 U. S. 498
. . . to the accomplishment of a permissible state policy." The State, at most,
argues that there is some rational relation between this statute and what is adm
ittedly a legitimate subject of state concern -- the discouraging of extramarita
l relations. It says that preventing the use of birth control devices by married
persons helps prevent the indulgence by some in such extramarital relations. Th
e rationality of this justification is dubious, particularly in light of the adm
itted widespread availability to all persons in the State of Connecticut. unmarr
ied as well as married, of birth control devices for the prevention of disease,
as distinguished from the prevention of conception, see Tileston v. Ullman, 129
Conn. 84, 26 A.2d 582. But, in any event, it is clear that the state interest in
safeguarding marital fidelity can be served by a more discriminately tailored s
tatute which does not, like the present one, sweep unnecessarily broadly, reachi
ng far beyond the evil sought to be dealt with and intruding upon the privacy of
all married couples. See Aptheker v. Secretary of State, 378 U. S. 500, 378 U.
S. 514; NAACP v. Alabama, 377 U. S. 288, 377 U. S. 307-308; McLaughlin v. Florid
a, supra, at 379 U. S. 196. Here, as elsewhere, "[p]recision of regulation must
be the touchstone in an area so closely touching our most precious freedoms." NA
ACP v. Button, 371 U. S. 415, 371 U. S. 438. The State of Connecticut does have
statutes, the constitutionality of which is beyond doubt, which prohibit adulter
y and fornication. See Conn.Gen.Stat. §§ 53-218, 53-219 et seq. These statutes demon
strate that means for achieving the same basic purpose of protecting marital fid
elity are available to Connecticut without the need to "invade the area of prote
cted freedoms." NAACP v. Alabama, supra, at 377 U. S. 307. See McLaughlin v. Flo
rida, supra, at 379 U. S. 196.
Finally, it should be said of the Court's holding today that it in no way interf
eres with a State's proper regulation
Page 381 U. S. 499
of sexual promiscuity or misconduct. As my Brother HARLAN so well stated in his
dissenting opinion in Poe v. Ullman, supra, at 367 U. S. 553.
"Adultery, homosexuality and the like are sexual intimacies which the State forb
ids . . . , but the intimacy of husband and wife is necessarily an essential and
accepted feature of the institution of marriage, an institution which the State
not only must allow, but which, always and in every age, it has fostered and pr
otected. It is one thing when the State exerts its power either to forbid extram
arital sexuality . . . or to say who may marry, but it is quite another when, ha
ving acknowledged a marriage and the intimacies inherent in it, it undertakes to
regulate by means of the criminal law the details of that intimacy."
In sum, I believe that the right of privacy in the marital relation is fundament
al and basic -- a personal right "retained by the people" within the meaning of
the Ninth Amendment. Connecticut cannot constitutionally abridge this fundamenta
l right, which is protected by the Fourteenth Amendment from infringement by the
States. I agree with the Court that petitioners' convictions must therefore be
reversed.
[Footnote 1]
My Brother STEWART dissents on the ground that he
"can find no . . . general right of privacy in the Bill of Rights, in any other
part of the Constitution, or in any case ever before decided by this Court."
Post at 381 U. S. 530. He would require a more explicit guarantee than the one w
hich the Court derives from several constitutional amendments. This Court, howev
er, has never held that the Bill of Rights or the Fourteenth Amendment protects
only those rights that the Constitution specifically mentions by name. See, e.g.
, Bolling v. Sharpe, 347 U. S. 497; Aptheker v. Secretary of State, 378 U. S. 50
0; Kent v. Dulles, 357 U. S. 116; Carrington v. Rash, 380 U. S. 89, 380 U. S. 96
; Schware v. Board of Bar Examiners, 353 U. S. 232; NAACP v. Alabama, 360 U. S.
240; Pierce v. Society of Sisters, 268 U. S. 510; Meyer v. Nebraska, 262 U. S. 3
90. To the contrary, this Court, for example, in Bolling v. Sharpe, supra, while
recognizing that the Fifth Amendment does not contain the "explicit safeguard"
of an equal protection clause, id. at 347 U. S. 499, nevertheless derived an equ
al protection principle from that Amendment's Due Process Clause. And in Schware
v. Board of Bar Examiners, supra, the Court held that the Fourteenth Amendment
protects from arbitrary state action the right to pursue an occupation, such as
the practice of law.
[Footnote 2]
See, e.g., Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226; Gitlow v. New York
, supra; Cantwell v. Connecticut, 310 U. S. 296; Wolf v. Colorado, 338 U. S. 25;
Robinson v. California, 370 U. S. 660; Gideon v. Wainwright, 372 U. S. 335; Mal
loy v. Hogan, 378 U. S. 1; Pointer v. Texas, supra; Griffin v. California, 380 U
. S. 609.
[Footnote 3]
Madison himself had previously pointed out the dangers of inaccuracy resulting f
rom the fact that "no language is so copious as to supply words and phrases for
every complex idea." The Federalist, No. 37 (Cooke ed.1961) at 236.
[Footnote 4]
Alexander Hamilton was opposed to a bill of rights on the ground that it was unn
ecessary, because the Federal Government was a government of delegated powers, a
nd it was not granted the power to intrude upon fundamental personal rights. The
Federalist, No. 84 (Cooke ed.1961), at 578-579. He also argued,
"I go further, and affirm that bills of rights, in the sense and in the extent i
n which they are contended for, are not only unnecessary in the proposed constit
ution, but would even be dangerous. They would contain various exceptions to pow
ers which are not granted, and, on this very account, would afford a colourable
pretext to claim more than were granted. For why declare that things shall not b
e done which there is no power to do? Why, for instance, should it be said that
the liberty of the press shall not be restrained when no power is given by which
restrictions may be imposed? I will not contend that such a provision would con
fer a regulating power; but it is evident that it would furnish, to men disposed
to usurp, a plausible pretence for claiming that power."
Id. at 579. The Ninth Amendment, and the Tenth Amendment, which provides,
The powers not delegated to the United States by the Constitution, nor prohibite
d by it to the States, are reserved to the States respectively, or to the people
,
were apparently also designed in part to meet the above-quoted argument of Hamil
ton.
[Footnote 5]
The Tenth Amendment similarly made clear that the States and the people retained
all those powers not expressly delegated to the Federal Government.
[Footnote 6]
This Amendment has been referred to as "The Forgotten Ninth Amendment," in a boo
k with that title by Bennett B. Patterson (1955). Other commentary on the Ninth
Amendment includes Redlich, Are There "Certain Rights . . . Retained by the Peop
le"? 37 N.Y.U.L.Rev. 787 (1962), and Kelsey, The Ninth Amendment of the Federal
Constitution, 11 Ind.L.J. 309 (1936). As far as I am aware, until today, this Co
urt has referred to the Ninth Amendment only in United Public Workers v. Mitchel
l, 330 U. S. 75, 330 U. S. 94-95; Tennessee Electric Power Co. v. TVA, 306 U. S.
118, 306 U. S. 143-144, and Ashwander v. TVA, 297 U. S. 288, 297 U. S. 330-331.
See also 3 U. S. 388; 87 U. S. 662-663.
In United Public Workers v. Mitchell, supra, at 330 U. S. 94-95, the Court state
d:
"We accept appellants' contention that the nature of political rights reserved t
o the people by the Ninth and Tenth Amendments [is] involved. The right claimed
as inviolate may be stated as the right of a citizen to act as a party official
or worker to further his own political views. Thus, we have a measure of interfe
rence by the Hatch Act and the Rules with what otherwise would be the freedom of
the civil servant under the First, Ninth and Tenth Amendments. And, if we look
upon due process as a guarantee of freedom in those fields, there is a correspon
ding impairment of that right under the Fifth Amendment."
[Footnote 7]
In light of the tests enunciated in these cases, it cannot be said that a judge'
s responsibility to determine whether a right is basic and fundamental in this s
ense vests him with unrestricted personal discretion. In fact, a hesitancy to al
low too broad a discretion was a substantial reason leading me to conclude, in P
ointer v. Texas, supra, at 380 U. S. 413-414, that those rights absorbed by the
Fourteenth Amendment and applied to the States because they are fundamental appl
y with equal force and to the same extent against both federal and state governm
ents. In Pointer, I said that the contrary view would require
"this Court to make the extremely subjective and excessively discretionary deter
mination as to whether a practice, forbidden the Federal Government by a fundame
ntal constitutional guarantee, is, as viewed in the factual circumstances surrou
nding each individual case, sufficiently repugnant to the notion of due process
as to be forbidden the States."
Id. at 380 U. S. 413.
[Footnote 8]
Pointer v. Texas, supra at 380 U. S. 413. See also the discussion of my Brother
DOUGLAS, Poe v. Ullman, supra, at 367 U. S. 517-518 (dissenting opinion).
MR. JUSTICE HARLAN, concurring in the judgment.
I fully agree with the judgment of reversal, but find myself unable to join the
Court's opinion. The reason is that it seems to me to evince an approach to this
case very much like that taken by my Brothers BLACK and STEWART in dissent, nam
ely: the Due Process Clause of the Fourteenth Amendment does not touch this Conn
ecticut statute unless the enactment is found to violate some right assured by t
he letter or penumbra of the Bill of Rights.
Page 381 U. S. 500
In other words, what I find implicit in the Court's opinion is that the "incorpo
ration" doctrine may be used to restrict the reach of Fourteenth Amendment Due P
rocess. For me, this is just as unacceptable constitutional doctrine as is the u
se of the "incorporation" approach to impose upon the States all the requirement
s of the Bill of Rights as found in the provisions of the first eight amendments
and in the decisions of this Court interpreting them. See, e.g., my concurring
opinions in Pointer v. Texas, 380 U. S. 400, 380 U. S. 408, and Griffin v. Calif
ornia, 380 U. S. 609, 380 U. S. 615, and my dissenting opinion in Poe v. Ullman,
367 U. S. 497, 367 U. S. 522, at pp. 381 U. S. 539-545.
In my view, the proper constitutional inquiry in this case is whether this Conne
cticut statute infringes the Due Process Clause of the Fourteenth Amendment beca
use the enactment violates basic values "implicit in the concept of ordered libe
rty," Palko v. Connecticut, 302 U. S. 319, 302 U. S. 325. For reasons stated at
length in my dissenting opinion in Poe v. Ullman, supra, I believe that it does.
While the relevant inquiry may be aided by resort to one or more of the provisi
ons of the Bill of Rights, it is not dependent on them or any of their radiation
s. The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on
its own bottom.
A further observation seems in order respecting the justification of my Brothers
BLACK and STEWART for their "incorporation" approach to this case. Their approa
ch does not rest on historical reasons, which are, of course, wholly lacking (se
e Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Ori
ginal Understanding, 2 Stan.L.Rev. 5 (1949)), but on the thesis that, by limitin
g the content of the Due Process Clause of the Fourteenth Amendment to the prote
ction of rights which can be found elsewhere in the Constitution, in this instan
ce, in the Bill of Rights, judges will thus be confined to "interpretation" of s
pecific constitutional
Page 381 U. S. 501
provisions, and will thereby be restrained from introducing their own notions of
constitutional right and wrong into the "vague contours of the Due Process Clau
se." Rochin v. California, 342 U. S. 165, 342 U. S. 170. While I could not more
heartily agree that judicial "self-restraint" is an indispensable ingredient of
sound constitutional adjudication, I do submit that the formula suggested for ac
hieving it is more hollow than real. "Specific" provisions of the Constitution,
no less than "due process," lend themselves as readily to "personal" interpretat
ions by judges whose constitutional outlook is simply to keep the Constitution i
n supposed "tune with the times" (post, p. 381 U. S. 522). Need one go further t
han to recall last Term's reapportionment cases, Wesberry v. Sanders, 376 U. S.
1, and Reynolds v. Sims, 377 U. S. 533, where a majority of the Court "interpret
ed" "by the People" (Art. I, § 2) and "equal protection" (Amdt. 14) to command "on
e person, one vote," an interpretation that was made in the face of irrefutable
and still unanswered history to the contrary? See my dissenting opinions in thos
e cases, 376 U.S. at 376 U. S. 20; 377 U.S. at 377 U. S. 589.
Judicial self-restraint will not, I suggest, be brought about in the "due proces
s" area by the historically unfounded incorporation formula long advanced by my
Brother BLACK, and now in part espoused by my Brother STEWART. It will be achiev
ed in this area, as in other constitutional areas, only by continual insistence
upon respect for the teachings of history, solid recognition of the basic values
that underlie our society, and wise appreciation of the great roles that the do
ctrines of federalism and separation of powers have played in establishing and p
reserving American freedoms. See Adamson v. California, 332 U. S. 46, 332 U. S.
59 (Mr. Justice Frankfurter, concurring). Adherence to these principles will not
, of course, obviate all constitutional differences of opinion among judges, nor
should it. Their continued recognition
Page 381 U. S. 502
will, however, go farther toward keeping most judges from roaming at large in th
e constitutional field than will the interpolation into the Constitution of an a
rtificial and largely illusory restriction on the content of the Due Process Cla
use.*
* Indeed, my Brother BLACK, in arguing his thesis, is forced to lay aside a host
of cases in which the Court has recognized fundamental rights in the Fourteenth
Amendment without specific reliance upon the Bill of Rights. Post, p. 381 U. S.
512, n. 4.
MR. JUSTICE WHITE, concurring in the judgment.
In my view, this Connecticut law, as applied to married couples, deprives them o
f "liberty" without due process of law, as that concept is used in the Fourteent
h Amendment. I therefore concur in the judgment of the Court reversing these con
victions under Connecticut's aiding and abetting statute.
It would be unduly repetitious, and belaboring the obvious, to expound on the im
pact of this statute on the liberty guaranteed by the Fourteenth Amendment again
st arbitrary or capricious denials or on the nature of this liberty. Suffice it
to say that this is not the first time this Court has had occasion to articulate
that the liberty entitled to protection under the Fourteenth Amendment includes
the right "to marry, establish a home and bring up children," Meyer v. Nebraska
, 262 U. S. 390, 262 U. S. 399, and "the liberty . . . to direct the upbringing
and education of children," Pierce v. Society of Sisters, 268 U. S. 510, 268 U.
S. 534-535, and that these are among "the basic civil rights of man." Skinner v.
Oklahoma, 316 U. S. 535, 316 U. S. 541. These decisions affirm that there is a
"realm of family life which the state cannot enter" without substantial justific
ation. Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166. Surely the right i
nvoked in this case, to be free of regulation of the intimacies of
Page 381 U. S. 503
the marriage relationship,
come[s] to this Court with a momentum for respect lacking when appeal is made to
liberties which derive merely from shifting economic arrangements.
Kovacs v. Cooper, 336 U. S. 77, 336 U. S. 95 (opinion of Frankfurter, J.).
The Connecticut anti-contraceptive statute deals rather substantially with this
relationship. For it forbids all married persons the right to use birth control
devices, regardless of whether their use is dictated by considerations of family
planning, Trubek v. Ullman, 147 Conn. 633, 165 A.2d 158, health, or indeed even
of life itself. Buxton v. Ullman, 147 Conn. 48, 156 A.2d 508. The anti-use stat
ute, together with the general aiding and abetting statute, prohibits doctors fr
om affording advice to married persons on proper and effective methods of birth
control. Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582. And the clear effect of
these statutes, as enforced, is to deny disadvantaged citizens of Connecticut, t
hose without either adequate knowledge or resources to obtain private counseling
, access to medical assistance and up-to-date information in respect to proper m
ethods of birth control. State v. Nelson, 126 Conn. 412, 11 A.2d 856; State v. G
riswold, 151 Conn. 544, 200 A.2d 479. In my view, a statute with these effects b
ears a substantial burden of justification when attacked under the Fourteenth Am
endment. Yick Wo v. Hopkins, 118 U. S. 356; Skinner v. Oklahoma, 316 U. S. 535;
Schware v. Board of Bar Examiners, 353 U. S. 232; McLaughlin v. Florida, 379 U.
S. 184, 379 U. S. 192.
An examination of the justification offered, however, cannot be avoided by sayin
g that the Connecticut anti-use statute invades a protected area of privacy and
association or that it demeans the marriage relationship. The nature of the righ
t invaded is pertinent, to be sure, for statutes regulating sensitive areas of l
iberty do, under
Page 381 U. S. 504
the cases of this Court, require "strict scrutiny," Skinner v. Oklahoma, 316 U.
S. 535, 316 U. S. 541, and "must be viewed in the light of less drastic means fo
r achieving the same basic purpose." Shelton v. Tucker, 364 U. S. 479, 364 U. S.
488.
"Where there is a significant encroachment upon personal liberty, the State may
prevail only upon showing a subordinating interest which is compelling."
Bates v. Little Rock, 361 U. S. 516, 361 U. S. 524. See also McLaughlin v. Flori
da, 379 U. S. 184. But such statutes, if reasonably necessary for the effectuati
on of a legitimate and substantial state interest, and not arbitrary or capricio
us in application, are not invalid under the Due Process Clause. Zemel v. Rusk,
381 U. S. 1. 381 U. S. S. 505?
As I read the opinions of the Connecticut courts and the argument of Connecticut
in this Court, the State claims but one justification for its anti-use statute.
Cf. Allied Stores of Ohio v. Bowers, 358 U. S. 522, 358 U. S. 530; Martin v. Wa
lton, 368 U. S. 25, 368 U. S. 28 (DOUGLAS, J., dissenting). There is no serious
contention that Connecticut thinks the use of artificial or external methods of
contraception immoral or unwise in itself, or that the anti-use statute is found
ed upon any policy of promoting population expansion. Rather, the statute is sai
d to serve the State's policy against all forms of promiscuous or illicit sexual
relationships, be they premarital or extramarital, concededly a permissible and
legitimate legislative goal.
Without taking issue with the premise that the fear of conception operates as a
deterrent to such relationships in addition to the criminal proscriptions Connec
ticut has against such conduct, I wholly fail to see how the ban on the use of c
ontraceptives by married couples in any way reinforces the State's ban on illici
t sexual relationships. See Schware v. Board of Bar Examiners, 353 U. S. 232, 35
3 U. S. 239. Connecticut does not bar the importation or possession of contracep
tive devices; they are not considered contraband material under state law, State
v. Certain Contraceptive Materials, 126 Conn. 428, 11 A.2d 863, and their avail
ability in that State is not seriously disputed. The only way Connecticut seeks
to limit or control the availability of such devices is through its general aidi
ng and abetting statute, whose operation in this context has
Page 381 U. S. 506
been quite obviously ineffective, and whose most serious use has been against bi
rth control clinics rendering advice to married, rather than unmarried, persons.
Cf. Yick Wo v. Hopkins, 118 U. S. 356. Indeed, after over 80 years of the State
's proscription of use, the legality of the sale of such devices to prevent dise
ase has never been expressly passed upon, although it appears that sales have lo
ng occurred and have only infrequently been challenged. This "undeviating policy
. . . throughout all the long years . . . bespeaks more than prosecutorial para
lysis." Poe v. Ullman, 367 U. S. 497, 367 U. S. 502. Moreover, it would appear t
hat the sale of contraceptives to prevent disease is plainly legal under Connect
icut law.
In these circumstances, one is rather hard pressed to explain how the ban on use
by married persons in any way prevents use of such devices by persons engaging
in illicit sexual relations, and thereby contributes to the State's policy again
st such relationships. Neither the state courts nor the State before the bar of
this Court has tendered such an explanation. It is purely fanciful to believe th
at the broad proscription on use facilitates discovery of use by persons engagin
g in a prohibited relationship, or for some other reason makes such use more unl
ikely, and thus can be supported by any sort of administrative consideration. Pe
rhaps the theory is that the flat ban on use prevents married people from posses
sing contraceptives and, without the ready availability of such devices for use
in the marital relationship, there will be no or less temptation to use them in
extramarital ones. This reasoning rests on the premise that married people will
comply with the ban in regard to their marital relationship, notwithstanding tot
al nonenforcement in this context and apparent nonenforcibility, but will not co
mply with criminal statutes prohibiting extramarital affairs and the anti-use st
atute in respect to illicit sexual relationships, a premise whose validity has n
ot been
Page 381 U. S. 507
demonstrated and whose intrinsic validity is not very evident. At most, the broa
d ban is of marginal utility to the declared objective. A statute limiting its p
rohibition on use to persons engaging in the prohibited relationship would serve
the end posited by Connecticut in the same way, and with the same effectiveness
or ineffectiveness, as the broad anti-use statute under attack in this case. I
find nothing in this record justifying the sweeping scope of this statute, with
its telling effect on the freedoms of married persons, and therefore conclude th
at it deprives such persons of liberty without due process of law.
* Dissenting opinions assert that the liberty guaranteed by the Due Process Clau
se is limited to a guarantee against unduly vague statutes and against procedura
l unfairness at trial. Under this view, the Court is without authority to ascert
ain whether a challenged statute, or its application, has a permissible purpose,
and whether the manner of regulation bears a rational or justifying relationshi
p to this purpose. A long line of cases makes very clear that this has not been
the view of this Court. Dent v. West Virginia, 129 U. S. 114; Jacobson v. Massac
husetts, 197 U. S. 11; Douglas v. Noble, 261 U. S. 165; Meyer v. Nebraska, 262 U
. S. 390; Pierce v. Society of Sisters, 268 U. S. 510; Schware v. Board of Bar E
xaminers, 353 U. S. 232; Aptheker v. Secretary of State, 378 U. S. 500; Zemel v.
Rusk, 381 U. S. 1.
The traditional due process test was well articulated and applied in Schware v.
Board of Bar Examiners, supra, a case which placed no reliance on the specific g
uarantees of the Bill of Rights.
"A State cannot exclude a person from the practice of law or from any other occu
pation in a manner or for reasons that contravene the Due Process or Equal Prote
ction Clause of the Fourteenth Amendment. Dent v. West Virginia, 129 U. S. 114.
Cf. Slochower v. Board of Education, 350 U. S. 551; Wieman v. Updegraff, 344 U.
S. 183. And see 60 U. S. 13. A State can require high standards of qualification
, such as good moral character or proficiency in its law, before it admits an ap
plicant to the bar, but any qualification must have a rational connection with t
he applicant's fitness or capacity to practice law. Douglas v. Noble, 261 U. S.
165; 71 U. S. 319-320. Cf. Nebbia v. New York, 291 U. S. 502. Obviously an appli
cant could not be excluded merely because he was a Republican, or a Negro, or a
member of a particular church. Even in applying permissible standards, officers
of a State cannot exclude an applicant when there is no basis for their finding
that he fails to meet these standards, or when their action is invidiously discr
iminatory."
353 U.S. at 353 U. S. 238-239. Cf. Martin v. Walton, 368 U. S. 25, 368 U. S. 26
(DOUGLAS, J., dissenting).
MR. JUSTICE BLACK, with whom MR. JUSTICE STEWART joins, dissenting.
I agree with my Brother STEWART's dissenting opinion. And, like him, I do not to
any extent whatever base my view that this Connecticut law is constitutional on
a belief that the law is wise, or that its policy is a good one. In order that
there may be no room at all to doubt why I vote as I do, I feel constrained to a
dd that the law is every bit as offensive to me as it is to my Brethren of the m
ajority and my Brothers HARLAN, WHITE and GOLDBERG, who, reciting reasons why it
is offensive to them, hold it unconstitutional. There is no single one of the g
raphic and eloquent strictures and criticisms fired at the policy of this Connec
ticut law either by the Court's opinion or by those of my concurring Brethren to
which I cannot subscribe -- except their conclusion that the evil qualities the
y see in the law make it unconstitutional.
Had the doctor defendant here, or even the nondoctor defendant, been convicted f
or doing nothing more than expressing opinions to persons coming to the clinic t
hat certain contraceptive devices, medicines or practices would do them good and
would be desirable, or for telling people how devices could be used, I can thin
k of no reasons at this time why their expressions of views would not be
Page 381 U. S. 508
protected by the First and Fourteenth Amendments, which guarantee freedom of spe
ech. Cf. Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar
, 377 U. S. 1; NAACP v. Button, 371 U. S. 415. But speech is one thing; conduct
and physical activities are quite another. See, e.g., Cox v. Louisiana, 379 U. S
. 536, 379 U. S. 554-555; Cox v. Louisiana, 379 U. S. 559, 379 U. S. 563-564; id
. 379 U. S. 575-584 (concurring opinion); Giboney v. Empire Storage & Ice Co., 3
36 U. S. 490; cf. Reynolds v. United States, 98 U. S. 145, 98 U. S. 163-164. The
two defendants here were active participants in an organization which gave phys
ical examinations to women, advised them what kind of contraceptive devices or m
edicines would most likely be satisfactory for them, and then supplied the devic
es themselves, all for a graduated scale of fees, based on the family income. Th
us, these defendants admittedly engaged with others in a planned course of condu
ct to help people violate the Connecticut law. Merely because some speech was us
ed in carrying on that conduct -- just as, in ordinary life, some speech accompa
nies most kinds of conduct -- we are not, in my view, justified in holding that
the First Amendment forbids the State to punish their conduct. Strongly as I des
ire to protect all First Amendment freedoms, I am unable to stretch the Amendmen
t so as to afford protection to the conduct of these defendants in violating the
Connecticut law. What would be the constitutional fate of the law if hereafter
applied to punish nothing but speech is, as I have said, quite another matter. T
he Court talks about a constitutional "right of privacy" as though there is some
constitutional provision or provisions forbidding any law ever to be passed whi
ch might abridge the "privacy" of individuals. But there is not. There are, of c
ourse, guarantees in certain specific constitutional provisions which are design
ed in part to protect privacy at certain times and places with respect to certai
n activities. Such, for example, is the Fourth
Page 381 U. S. 509
Amendment's guarantee against "unreasonable searches and seizures." But I think
it belittles that Amendment to talk about it as though it protects nothing but "
privacy." To treat it that way is to give it a niggardly interpretation, not the
kind of liberal reading I think any Bill of Rights provision should be given. T
he average man would very likely not have his feelings soothed any more by havin
g his property seized openly than by having it seized privately and by stealth.
He simply wants his property left alone. And a person can be just as much, if no
t more, irritated, annoyed and injured by an unceremonious public arrest by a po
liceman as he is by a seizure in the privacy of his office or home.
One of the most effective ways of diluting or expanding a constitutionally guara
nteed right is to substitute for the crucial word or words of a constitutional g
uarantee another word or words, more or less flexible and more or less restricte
d in meaning. This fact is well illustrated by the use of the term "right of pri
vacy" as a comprehensive substitute for the Fourth Amendment's guarantee against
"unreasonable searches and seizures." "Privacy" is a broad, abstract and ambigu
ous concept which can easily be shrunken in meaning but which can also, on the o
ther hand, easily be interpreted as a constitutional ban against many things oth
er than searches and seizures. I have expressed the view many times that First A
mendment freedoms, for example, have suffered from a failure of the courts to st
ick to the simple language of the First Amendment in construing it, instead of i
nvoking multitudes of words substituted for those the Framers used. See, e.g., N
ew York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 293 (concurring opinion)
; cases collected in City of El Paso v. Simmons, 379 U. S. 497, 379 U. S. 517, n
. 1 (dissenting opinion); Black, The Bill of Rights, 35 N.Y.U.L.Rev. 865. For th
ese reasons, I get nowhere in this case by talk about a constitutional "right of
privacy" as an emanation from
Page 381 U. S. 510
one or more constitutional provisions. [Footnote 2/1] I like my privacy as well
as the next one, but I am nevertheless compelled to admit that government has a
right to. invade it unless prohibited by some specific constitutional provision.
For these reasons, I cannot agree with the Court's judgment and the reasons it
gives for holding this Connecticut law unconstitutional.
This brings me to the arguments made by my Brothers HARLAN, WHITE and GOLDBERG f
or invalidating the Connecticut law. Brothers HARLAN [Footnote 2/2] and WHITE wo
uld invalidate it by reliance on the Due Process Clause of the Fourteenth Amendm
ent, but Brother GOLDBERG, while agreeing with Brother HARLAN, relies also on th
e Ninth Amendment. I have no doubt that the Connecticut law could be applied in
such a way as to abridge freedom of
Page 381 U. S. 511
speech and press, and therefore violate the First and Fourteenth Amendments. My
disagreement with the Court's opinion holding that there is such a violation her
e is a narrow one, relating to the application of the First Amendment to the fac
ts and circumstances of this particular case. But my disagreement with Brothers
HARLAN, WHITE and GOLDBERG is more basic. I think that, if properly construed, n
either the Due Process Clause nor the Ninth Amendment, nor both together, could
under any circumstances be a proper basis for invalidating the Connecticut law.
I discuss the due process and Ninth Amendment arguments together because, on ana
lysis, they turn out to be the same thing -- merely using different words to cla
im for this Court and the federal judiciary power to invalidate any legislative
act which the judges find irrational, unreasonable or offensive.
The due process argument which my Brothers HARLAN and WHITE adopt here is based,
as their opinions indicate, on the premise that this Court is vested with power
to invalidate all state laws that it considers to be arbitrary, capricious, unr
easonable, or oppressive, or on this Court's belief that a particular state law
under scrutiny has no "rational or justifying" purpose, or is offensive to a "se
nse of fairness and justice." [Footnote 2/3] If these formulas based on "natural
justice," or others which mean the same thing, [Footnote 2/4] are to prevail, t
hey require judges to determine
Page 381 U. S. 512
what is or is not constitutional on the basis of their own appraisal of what law
s are unwise or unnecessary. The power to make such decisions is, of course, tha
t of a legislative body. Surely it has to be admitted that no provision of the C
onstitution specifically gives such blanket power to courts to exercise such a s
upervisory veto over the wisdom and value of legislative policies and to hold un
constitutional those laws which they believe unwise or dangerous. I readily admi
t that no legislative body, state or national, should pass laws that can justly
be given any
Page 381 U. S. 513
of the invidious labels invoked as constitutional excuses to strike down state l
aws. But perhaps it is not too much to say that no legislative body ever does pa
ss laws without believing that they will accomplish a sane, rational, wise and j
ustifiable purpose. While I completely subscribe to the holding of Marbury v. Ma
dison, 1 Cranch 137, and subsequent cases, that our Court has constitutional pow
er to strike down statutes, state or federal, that violate commands of the Feder
al Constitution, I do not believe that we are granted power by the Due Process C
lause or any other constitutional provision or provisions to measure constitutio
nality by our belief that legislation is arbitrary, capricious or unreasonable,
or accomplishes no justifiable purpose, or is offensive to our own notions of "c
ivilized standards of conduct." [Footnote 2/5] Such an appraisal of the wisdom o
f legislation is an attribute of the power to make laws, not of the power to int
erpret them. The use by federal courts of such a formula or doctrine or whatnot
to veto federal or state laws simply takes away from Congress and States the pow
er to make laws based on their own judgment of fairness and wisdom, and transfer
s that power to this Court for ultimate determination -- a power which was speci
fically denied to federal courts by the convention that framed the Constitution.
[Footnote 2/6]
Page 381 U. S. 514
Of the cases on which my Brothers WHITE and GOLDBERG rely so heavily, undoubtedl
y the reasoning of two of them supports their result here -- as would that of a
number of others which they do not bother to name, e.g.,
Page 381 U. S. 515
Lochner v. New York, 198 U. S. 45, Coppage v. Kansas, 236 U. S. 1, Jay Burns Bak
ing Co. v. Bryan, 264 U. S. 504, and Adkins v. Children's Hospital, 261 U. S. 52
5. The two they do cite and quote from, Meyer v. Nebraska, 262 U. S. 390, and Pi
erce v. Society of Sisters, 268 U. S. 510, were both decided in opinions by Mr.
Justice McReynolds which elaborated the same natural law due process philosophy
found in Lochner v. New York, supra, one of the cases on which he relied in Meye
r, along with such other long-discredited decisions as, e.g., Adams v. Tanner, 2
44 U. S. 590, and Adkins v. Children's Hospital, supra. Meyer held unconstitutio
nal, as an "arbitrary" and unreasonable interference with the right of a teacher
to carry on his occupation and of parents to hire him, a
Page 381 U. S. 516
state law forbidding the teaching of modern foreign languages to young children
in the schools. [Footnote 2/7] And in Pierce, relying principally on Meyer, Mr.
Justice McReynolds said that a state law requiring that all children attend publ
ic schools interfered unconstitutionally with the property rights of private sch
ool corporations because it was an "arbitrary, unreasonable and unlawful interfe
rence" which threatened "destruction of their business and property." 268 U.S. a
t 268 U. S. 536. Without expressing an opinion as to whether either of those cas
es reached a correct result in light of our later decisions applying the First A
mendment to the States through the Fourteenth, [Footnote 2/8] I merely point out
that the reasoning stated in Meyer and Pierce was the same natural law due proc
ess philosophy which many later opinions repudiated, and which I cannot accept.
Brothers WHITE and GOLDBERG also cite other cases, such as NAACP v. Button, 371
U. S. 415, Shelton v. Tucker, 364 U. S. 479, and Schneider v. State, 308 U. S. 1
47, which held that States in regulating conduct could not, consistently with th
e First Amendment as applied to them by the Fourteenth, pass unnecessarily broad
laws which might indirectly infringe on First Amendment freedoms. [Footnote 2/9
] @See 377 U. S. 7-8. [Footnote 2/10] Brothers WHITE and GOLDBERG now apparently
would start from this requirement that laws be narrowly drafted so as not to cu
rtail free speech and assembly, and extend it limitlessly to require States to j
ustify any law restricting "liberty" as my Brethren define "liberty." This would
mean at the
Page 381 U. S. 518
very least, I suppose, that every state criminal statute -- since it must inevit
ably curtail "liberty" to some extent -- would be suspect, and would have to be
Justified to this Court. [Footnote 2/11]
My Brother GOLDBERG has adopted the recent discovery [Footnote 2/12] that the Ni
nth Amendment as well as the Due Process Clause can be used by this Court as aut
hority to strike down all state legislation which this Court thinks
Page 381 U. S. 519
violates "fundamental principles of liberty and justice," or is contrary to the
"traditions and [collective] conscience of our people." He also states, without
proof satisfactory to me, that, in making decisions on this basis, judges will n
ot consider "their personal and private notions." One may ask how they can avoid
 considering them. Our Court certainly has no machinery with which to take a Gal
lup Poll. [Footnote 2/13] And the scientific miracles of this age have not yet p
roduced a gadget which the Court can use to determine what traditions are rooted
in the "[collective] conscience of our people." Moreover, one would certainly h
ave to look far beyond the language of the Ninth Amendment [Footnote 2/14] to fi
nd that the Framers vested in this Court any such awesome veto powers over lawma
king, either by the States or by the Congress. Nor does anything in the history
of the Amendment offer any support for such a shocking doctrine. The whole histo
ry of the adoption of the Constitution and Bill of Rights points the other way,
and the very material quoted by my Brother GOLDBERG shows that the Ninth Amendme
nt was intended to protect against the idea that, "by enumerating particular exc
eptions to the grant of power" to the Federal Government, "those rights which we
re not singled out were intended to be assigned into the hands of the General Go
vernment [the United States], and were consequently
Page 381 U. S. 520
insecure." [Footnote 2/15] That Amendment was passed not to broaden the powers o
f this Court or any other department of "the General Government," but, as every
student of history knows, to assure the people that the Constitution in all its
provisions was intended to limit the Federal Government to the powers granted ex
pressly or by necessary implication. If any broad, unlimited power to hold laws
unconstitutional because they offend what this Court conceives to be the "[colle
ctive] conscience of our people" is vested in this Court by the Ninth Amendment,
the Fourteenth Amendment, or any other provision of the Constitution, it was no
t given by the Framers, but rather has been bestowed on the Court by the Court.
This fact is perhaps responsible for the peculiar phenomenon that, for a period
of a century and a half, no serious suggestion was ever made that the Ninth Amen
dment, enacted to protect state powers against federal invasion, could be used a
s a weapon of federal power to prevent state legislatures from passing laws they
consider appropriate to govern local affairs. Use of any such broad, unbounded
judicial authority would make of this Court's members a day-to-day constitutiona
l convention.
I repeat, so as not to be misunderstood, that this Court does have power, which
it should exercise, to hold laws unconstitutional where they are forbidden by th
e Federal Constitution. My point is that there is no provision
Page 381 U. S. 521
of the Constitution which either expressly or impliedly vests power in this Cour
t to sit as a supervisory agency over acts of duly constituted legislative bodie
s and set aside their laws because of the Court's belief that the legislative po
licies adopted are unreasonable, unwise, arbitrary, capricious or irrational. Th
e adoption of such a loose flexible. uncontrolled standard for holding laws unco
nstitutional, if ever it is finally achieved, will amount to a great unconstitut
ional shift of power to the courts which I believe and am constrained to say wil
l be bad for the courts, and worse for the country. Subjecting federal and state
laws to such an unrestrained and unrestrainable judicial control as to the wisd
om of legislative enactments would, I fear, jeopardize the separation of governm
ental powers that the Framers set up, and, at the same time, threaten to take aw
ay much of the power of States to govern themselves which the Constitution plain
ly intended them to have. [Footnote 2/16]
Page 381 U. S. 522
I realize that many good and able men have eloquently spoken and written, someti
mes in rhapsodical strains, about the duty of this Court to keep the Constitutio
n in tune with the times. The idea is that the Constitution must be changed from
time to time, and that this Court is charged with a duty to make those changes.
 For myself, I must, with all deference, reject that philosophy. The Constitutio
n makers knew the need for change, and provided for it. Amendments suggested by
the people's elected representatives can be submitted to the people or their sel
ected agents for ratification. That method of change was good for our Fathers, a
nd, being somewhat old-fashioned, I must add it is good enough for me. And so I
cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious a
nd uncertain natural law concept as a reason for striking down this state law. T
he Due Process Clause, with an "arbitrary and capricious" or "shocking to the co
nscience" formula, was liberally used by this Court to strike down economic legi
slation in the early decades of this century, threatening, many people thought,
the tranquility and stability of the Nation. See, e.g., Lochner v. New York, 198
U. S. 45. That formula, based on subjective considerations of "natural justice,
" is no less dangerous when used to enforce this Court's views about personal ri
ghts than those about economic rights. I had thought that we had laid that formu
la, as a means for striking down state legislation, to rest once and for all in
cases like West Coast Hotel Co. v. Parrish, 300 U. S. 379; Olsen v. Nebraska ex
rel. Western Reference & Bond Assn., 313 U. S. 236, and many other
Page 381 U. S. 523
opinions. [Footnote 2/17] See also Lochner v. New York, 198 U. S. 45, 198 U. S.
74 (Holmes, J., dissenting).
In Ferguson v. Skrupa, 372 U. S. 726, 372 U. S. 730, this Court two years ago sa
id, in an opinion joined by all the Justices but one, [Footnote 2/18] that
"The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases
-- that due process authorizes courts to hold laws unconstitutional when they be
lieve the legislature has acted unwisely -- has long since been discarded. We ha
ve returned to the original constitutional proposition that courts do not substi
tute their social and economic beliefs for the judgment of legislative bodies, w
ho are elected to pass laws."
And only six weeks ago, without even bothering to hear argument, this Court over
ruled Tyson & Brother v. Banton, 273 U. S. 418, which had held state laws regula
ting ticket brokers to be a denial of due process of law. [Footnote 2/19] Gold
Page 381 U. S. 524
v. DiCarlo, 380 U. S. 520. I find April's holding hard to square with what my co
ncurring Brethren urge today. They would reinstate the Lochner, Coppage, Adkins,
Burns line of cases, cases from which this Court recoiled after the 1930's, and
which had been, I thought, totally discredited until now. Apparently my Brethre
n have less quarrel with state economic regulations than former Justices of thei
r persuasion had. But any limitation upon their using the natural law due proces
s philosophy to strike down any state law, dealing with any activity whatever, w
ill obviously be only self-imposed. [Footnote 2/20]
In 1798, when this Court was asked to hold another Connecticut law unconstitutio
nal, Justice Iredell said:
"[I]t has been the policy of all the American states which have individually fra
med their state constitutions since the revolution, and of the people of the Uni
ted States when they framed the Federal Constitution, to define with precision t
he objects of the legislative power, and to restrain its exercise within marked
and settled boundaries. If any act of Congress, or of the Legislature of a state
, violates those constitutional provisions, it is unquestionably void, though I
admit that, as the authority to declare it void is of a delicate and awful natur
e, the Court will never resort to that authority but in a clear and urgent case.
If, on the other hand, the Legislature of the Union, or the Legislature of any
member of the Union, shall pass a law within the
Page 381 U. S. 525
general scope of their constitutional power, the Court cannot pronounce it to be
void, merely because it is, in their judgment, contrary to the principles of na
tural justice. The ideas of natural justice are regulated by no fixed standard:
the ablest and the purest men have differed upon the subject, and all that the C
ourt could properly say in such an event would be that the Legislature (possesse
d of an equal right of opinion) had passed an act which, in the opinion of the j
udges, was inconsistent with the abstract principles of natural justice."
3 U. S. 399 (emphasis in original). I would adhere to that constitutional philos
ophy in passing on this Connecticut law today. I am not persuaded to deviate fro
m the view which I stated in 1947 in Adamson v. California,@ 332 U. S. 46, 332 U
. S. 90-92 (dissenting opinion):
"Since Marbury v. Madison, 1 Cranch 137, was decided, the practice has been firm
ly established, for better or worse, that courts can strike down legislative ena
ctments which violate the Constitution. This process, of course, involves interp
retation, and since words can have many meanings, interpretation obviously may r
esult in contraction or extension of the original purpose of a constitutional pr
ovision, thereby affecting policy. But to pass upon the constitutionality of sta
tutes by looking to the particular standards enumerated in the Bill of Rights an
d other parts of the Constitution is one thing; to invalidate statutes because o
f application of 'natural law' deemed to be above and undefined by the Constitut
ion is another."
"In the one instance, courts, proceeding within clearly marked constitutional bo
undaries, seek to execute policies written into the Constitution; in the other,
they roam at will in the limitless
Page 381 U. S. 526
area of their own beliefs as to reasonableness, and actually select policies, a
responsibility which the Constitution entrusts to the legislative representative
s of the people."
"Federal Power Commission v. Pipeline Co., 315 U. S. 575, 315 U. S. 599, 315 U.
S. 601, n.4. [Footnote 2/21]"
(Footnotes omitted.) The late Judge Learned Hand, after emphasizing his view tha
t judges should not use the due process formula suggested in the concurring opin
ions today or any other formula like it to invalidate legislation offensive to t
heir "personal preferences," [Footnote 2/22] made the statement, with which I fu
lly agree, that:
"For myself, it would be most irksome to be ruled by a bevy of Platonic Guardian
s, even if I
Page 381 U. S. 527
knew how to choose them, which I assuredly do not. [Footnote 2/23]"
So far as I am concerned, Connecticut's law, as applied here, is not forbidden b
y any provision of the Federal Constitution as that Constitution was written, an
d I would therefore affirm.
[Footnote 2/1]
The phrase "right to privacy" appears first to have gained currency from an arti
cle written by Messrs. Warren and (later Mr. Justice) Brandeis in 1890 which urg
ed that States should give some form of tort relief to persons whose private aff
airs were exploited by others. The Right to Privacy, 4 Harv.L.Rev.193. Largely a
s a result of this article, some States have passed statutes creating such a cau
se of action, and, in others, state courts have done the same thing by exercisin
g their powers as courts of common law. See generally, 41 Am.Jur. 926-927. Thus,
the Supreme Court of Georgia, in granting a cause of action for damages to a ma
n whose picture had been used in a newspaper advertisement without his consent,
said that "A right of privacy in matters purely private is . . . derived from na
tural law," and that
"The conclusion reached by us seems to be . . . thoroughly in accord with natura
l justice, with the principles of the law of every civilized nation, and especia
lly with the elastic principles of the common law. . . ."
Pavesich v. New England Life Ins. Co., 122 Ga.190, 194, 218, 50 S.E. 68, 70, 80.
Observing that "the right of privacy . . . presses for recognition here," today
this Court, which I did not understand to have power to sit as a court of commo
n law, now appears to be exalting a phrase which Warren and Brandeis used in dis
cussing grounds for tort relief, to the level of a constitutional rule which pre
vents state legislatures from passing any law deemed by this Court to interfere
with "privacy."
[Footnote 2/2]
Brother HARLAN's views are spelled out at greater length in his dissenting opini
on in Poe v. Ullman, 367 U. S. 497, 367 U. S. 539-555.
[Footnote 2/3]
Indeed, Brother WHITE appears to have gone beyond past pronouncements of the nat
ural law due process theory, which at least said that the Court should exercise
this unlimited power to declare state acts unconstitutional with "restraint." He
now says that, instead of being presumed constitutional (see Munn v. Illinois,
94 U. S. 113, 94 U. S. 123; compare Adkins v. Children's Hospital, 261 U. S. 525
, 261 U. S. 544), the statute here "bears a substantial burden of justification
when attacked under the Fourteenth Amendment."
[Footnote 2/4]
A collection of the catchwords and catch phrases invoked by judges who would str
ike down under the Fourteenth Amendment laws which offend their notions of natur
al justice would fill many pages. Thus, it has been said that this Court can for
bid state action which "shocks the conscience," Rochin v. California, 342 U. S.
165, 342 U. S. 172, sufficiently to "shock itself into the protective arms of th
e Constitution," Irvine v. California, 347 U. S. 128, 347 U. S. 138 (concurring
opinion). It has been urged that States may not run counter to the "decencies of
civilized conduct," Rochin, supra, at 342 U. S. 173, or "some principle of just
ice so rooted in the traditions and conscience of our people as to be ranked as
fundamental," Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 105, or to "those
canons of decency and fairness which express the notions of justice of English-
speaking peoples," Malinski v. New York, 324 U. S. 401, 324 U. S. 417 (concurrin
g opinion), or to "the community's sense of fair play and decency," Rochin, supr
a, at 342 U. S. 173. It has been said that we must decide whether a state law is
"fair, reasonable and appropriate," or is rather
"an unreasonable, unnecessary and arbitrary interference with the right of the i
ndividual to his personal liberty or to enter into . . . contracts,"
Lochner v. New York, 198 U. S. 45, 198 U. S. 56. States, under this philosophy,
cannot act in conflict with "deeply rooted feelings of the community," Haley v.
Ohio, 332 U. S. 596, 332 U. S. 604 (separate opinion), or with "fundamental noti
ons of fairness and justice," id. 332 U. S. 607. See also, e.g., Wolf v. Colorad
o, 338 U. S. 25, 338 U. S. 27 ("rights . . . basic to our free society"); Hebert
v. Louisiana, 272 U. S. 312, 272 U. S. 316 ("fundamental principles of liberty
and justice"); Adkins v. Children's Hospital, 261 U. S. 525, 261 U. S. 561 ("arb
itrary restraint of . . . liberties"); Betts v. Brady, 316 U. S. 455, 316 U. S.
462 ("denial of fundamental fairness, shocking to the universal sense of justice
"); Poe v. Ullman, 367 U. S. 497, 367 U. S. 539 (dissenting opinion) ("intolerab
le and unjustifiable"). Perhaps the clearest, frankest, and briefest explanation
of how this due process approach works is the statement in another case handed
down today that this Court is to invoke the Due Process Clause to strike down st
ate procedures or laws which it can "not tolerate." Linkletter v. Walker, post,
p. 381 U. S. 618, at 381 U. S. 631.
[Footnote 2/5]
See Hand, The Bill of Rights (1958) 70: .
"[J]udges are seldom content merely to annul the particular solution before them
; they do not, indeed they may not, say that, taking all things into considerati
on, the legislators' solution is too strong for the judicial stomach. On the con
trary, they wrap up their veto in a protective veil of adjectives such as 'arbit
rary,' 'artificial,' 'normal,' 'reasonable,' 'inherent,' 'fundamental,' or 'esse
ntial,' whose office usually, though quite innocently, is to disguise what they
are doing and impute to it a derivation far more impressive than their personal
preferences, which are all that, in fact, lie behind the decision."
See also Rochin v. California, 342 U. S. 165, 342 U. S. 174 (concurring opinion)
. But see Linkletter v. Walker, supra, 381 U. S. 4, at 631.
[Footnote 2/6]
This Court held in Marbury v. Madison, 1 Cranch 137, that this Court has power t
o invalidate laws on the ground that they exceed the constitutional power of Con
gress or violate some specific prohibition of the Constitution. See also Fletche
r v. Peck, 6 Cranch 87. But the Constitutional Convention did, on at least two o
ccasions, reject proposals which would have given the federal judiciary a part i
n recommending laws or in vetoing as bad or unwise the legislation passed by the
Congress. Edmund Randolph of Virginia proposed that the President
". . . and a convenient number of the National Judiciary ought to compose a coun
cil of revision with authority to examine every act of the National Legislature
before it shall operate, & every act of a particular Legislature before a Negati
ve thereon shall be final, and that the dissent of the said Council shall amount
to a rejection, unless the Act of the National Legislature be again passed, or
that of a particular Legislature be again negatived by ___ [original wording ill
egible] of the members of each branch."
1 The Records of the Federal Convention of 1787 (Farrand ed.1911) 21.
In support of a plan of this kind, James Wilson of Pennsylvania argued that:
". . . It had been said that the Judges, as expositors of the Laws, would have a
n opportunity of defending their constitutional rights. There was weight in this
observation; but this power of the Judges did not go far enough. Laws may be un
just, may be unwise, may be dangerous, may be destructive, and yet not be so unc
onstitutional as to justify the Judges in refusing to give them effect. Let them
have a share in the Revisionary power, and they will have an opportunity of tak
ing notice of these characters of a law, and of counteracting, by the weight of
their opinions the improper views of the Legislature."
2 id. at 73.
Nathaniel Gorham of Massachusetts
"did not see the advantage of employing the Judges in this way. As Judges, they
are not to be presumed to possess any peculiar knowledge of the mere policy of p
ublic measures."
Ibid. Elbridge Gerry of Massachusetts likewise opposed the proposal for a counci
l of revision:
". . . He relied, for his part, on the Representatives of the people as the guar
dians of their Rights & interests. It [the proposal] was making the Expositors o
f the Laws the Legislators, which ought never to be done."
Id. at 75. And, at another point:
"Mr. Gerry doubts whether the Judiciary ought to form a part of it [the proposed
council of revision], as they will have a sufficient check agst. encroachments
on their own department by their exposition of the laws, which involved a power
of deciding on their Constitutionality. . . . It was quite foreign from the natu
re of ye. office to make them judges of the policy of public measures."
1 Id. at 97-98. Madison supported the proposal on the ground that "a Check [on t
he legislature] is necessary." Id. at 108. John Dickinson of Delaware opposed it
on the ground that "the Judges must interpret the Laws; they ought not to be le
gislators." Ibid. The proposal for a council of revision was defeated. The follo
wing proposal was also advanced:
"To assist the President in conducting the Public affairs, there shall be a Coun
cil of State composed of the following officers -- 1. The Chief Justice of the S
upreme Court, who shall from time to time recommend such alterations of and addi
tions to the laws of the U.S. as may in his opinion be necessary to the due admi
nistration of Justice, and such as may promote useful learning and inculcate sou
nd morality throughout the Union. . . ."
2 id. at 342. This proposal too was rejected.
[Footnote 2/7]
In Meyer, in the very same sentence quoted in part by my Brethren in which he as
serted that the Due Process Clause gave an abstract and inviolable right "to mar
ry, establish a home and bring up children," Mr. Justice McReynolds also asserte
d the heretofore discredited doctrine that the Due Process Clause prevented Stat
es from interfering with "the right of the individual to contract." 262 U.S. at
262 U. S. 399.
[Footnote 2/8]
Compare Poe v. Ullman, 367 U.S. at 367 U. S. 53-54 (HARLAN, J., dissenting).
[Footnote 2/9]
The Court has also said that, in view of the Fourteenth Amendment's major purpos
e of eliminating state-enforced racial discrimination, this Court will scrutiniz
e carefully any law embodying a racial classification to make sure that it does
not deny equal protection of the laws. See McLaughlin v. Florida, 379 U. S. 184.
[Footnote 2/10]
None of the other cases decided in the past 25 years which Brothers WHITE and GO
LDBERG cite can justly be read as holding that judges have power to use a natura
l law due process formula to strike down all state laws which they think are unw
ise, dangerous, or irrational. Prince v. Massachusetts, 321 U. S. 158, upheld a
state law forbidding minors from selling publications on the streets. Kent v. Du
lles, 357 U. S. 116, recognized the power of Congress to restrict travel outside
the country so long as it accorded persons the procedural safeguards of due pro
cess and did not violate any other specific constitutional provision. Schware v.
Board of Bar Examiners, 353 U. S. 232, held simply that a State could not, cons
istently with due process, refuse a lawyer a license to practice law on the basi
s of a finding that he was morally unfit when there was no evidence in the recor
d, 353 U.S. at 353 U. S. 246-247, to support such a finding. Compare Thompson v.
City of Louisville, 362 U. S. 199, in which the Court relied in part on Schware
. See also Konigsberg v. State Bar, 353 U. S. 252. And Bolling v. Sharpe, 347 U.
S. 497, merely recognized what had been the understanding from the beginning of
the country, an understanding shared by many of the draftsmen of the Fourteenth
Amendment, that the whole Bill of Rights, including the Due Process Clause of t
he Fifth Amendment, was a guarantee that all persons would receive equal treatme
nt under the law. Compare Chambers v. Florida, 309 U. S. 227, 309 U. S. 240-241.
With one exception, the other modern cases relied on by my Brethren were decide
d either solely under the Equal Protection Clause of the Fourteenth Amendment or
under the First Amendment, made applicable to the States by the Fourteenth, som
e of the latter group involving the right of association which this Court has he
ld to be a part of the rights of speech, press and assembly guaranteed by the Fi
rst Amendment. As for Aptheker v. Secretary of State, 378 U. S. 500, I am compel
led to say that, if that decision was written or intended to bring about the abr
upt and drastic reversal in the course of constitutional adjudication which is n
ow attributed to it, the change was certainly made in a very quiet and unprovoca
tive manner, without any attempt to justify it.
[Footnote 2/11]
Compare Adkins v. Children's Hospital, 261 U. S. 525, 261 U. S. 568 (Holmes, J.,
dissenting):
"The earlier decisions upon the same words [the Due Process Clause] in the Fourt
eenth Amendment began within our memory, and went no farther than an unpretentio
us assertion of the liberty to follow the ordinary callings. Later, that innocuo
us generality was expanded into the dogma, Liberty of Contract. Contract is not
specially mentioned in the text that we have to construe. It is merely an exampl
e of doing what you want to do, embodied in the word liberty. But pretty much al
l law consists in forbidding men to do some things that they want to do, and con
tract is no more exempt from law than other acts."
[Footnote 2/12]
See Patterson, The Forgotten Ninth Amendment (1955). Mr. Patterson urges that th
e Ninth Amendment be used to protect unspecified "natural and inalienable rights
." P. 4. The Introduction by Roscoe Pound states that "there is a marked revival
of natural law ideas throughout the world. Interest in the Ninth Amendment is a
symptom of that revival." P. iii.
In Redlich, Are There "Certain Rights . . . Retained by the People"?, 37 N.Y.U.L
.Rev. 787, Professor Redlich, in advocating reliance on the Ninth and Tenth Amen
dments to invalidate the Connecticut law before us, frankly states:
"But for one who feels that the marriage relationship should be beyond the reach
 of a state law forbidding the use of contraceptives, the birth control case pos
es a troublesome and challenging problem of constitutional interpretation. He ma
y find himself saying, 'The law is unconstitutional -- but why?' There are two p
ossible paths to travel in finding the answer. One is to revert to a frankly fle
xible due process concept even on matters that do not involve specific constitut
ional prohibitions. The other is to attempt to evolve a new constitutional frame
work within which to meet this and similar problems which are likely to arise."
Id. at 798.
[Footnote 2/13]
Of course, one cannot be oblivious to the fact that Mr. Gallup has already publi
shed the results of a poll which he says show that 46% of the people in this cou
ntry believe schools should teach about birth control. Washington Post, May 21,
1965, p. 2, col. 1. I can hardly believe, however, that Brother GOLDBERG would v
iew 46% of the persons polled as so overwhelming a proportion that this Court ma
y now rely on it to declare that the Connecticut law infringes "fundamental" rig
hts, and overrule the longstanding view of the people of Connecticut expressed t
hrough their elected representatives.
[Footnote 2/14]
U.S.Const., Amend. IX, provides:
"The enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people."
[Footnote 2/15]
1 Annals of Congress 439. See also II Story, Commentaries on the Constitution of
the United States (5th ed. 1891):
"This clause was manifestly introduced to prevent any perverse or ingenious misa
pplication of the well known maxim that an affirmation in particular cases impli
es a negation in all others; and, e converso, that a negation in particular case
s implies an affirmation in all others. The maxim, rightly understood, is perfec
tly sound and safe; but it has often been strangely forced from its natural mean
ing into the support of the most dangerous political heresies."
Id. at 651 (footnote omitted).
[Footnote 2/16]
Justice Holmes, in one of his last dissents, written in reply to Mr. Justice McR
eynolds' opinion for the Court in Baldwin v. Missouri, 281 U. S. 586, solemnly w
arned against a due process formula apparently approved by my concurring Brethre
n today. He said:
"I have not yet adequately expressed the more than anxiety that I feel at the ev
er increasing scope given to the Fourteenth Amendment in cutting down what I bel
ieve to be the constitutional rights of the States. As the decisions now stand,
I see hardly any limit but the sky to the invalidating of those rights if they h
appen to strike a majority of this Court as for any reason undesirable. I cannot
believe that the Amendment was intended to give us carte blanche to embody our
economic or moral beliefs in its prohibitions. Yet I can think of no narrower re
ason that seems to me to justify the present and the earlier decisions to which
I have referred. Of course, the words 'due process of law,' if taken in their li
teral meaning, have no application to this case, and while it is too late to den
y that they have been given a much more extended and artificial signification, s
till we ought to remember the great caution shown by the Constitution in limitin
g the power of the States, and should be slow to construe the clause in the Four
teenth Amendment as committing to the Court, with no guide but the Court's own d
iscretion, the validity of whatever laws the States may pass."
281 U.S. at 281 U. S. 595. See 2 Holmes-Pollock Letters (Howe ed.1941) 267-268.
[Footnote 2/17]
E.g., in Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 342 U. S. 423, thi
s Court held that
"Our recent decisions make plain that we do not sit as a superlegislature to wei
gh the wisdom of legislation nor to decide whether the policy which it expresses
offends the public welfare."
Compare Gardner v. Massachusetts, 305 U.S. 559, which the Court today apparently
overrules, which held that a challenge under the Federal Constitution to a stat
e law forbidding the sale or furnishing of contraceptives did not raise a substa
ntial federal question.
[Footnote 2/18]
Brother HARLAN, who has consistently stated his belief in the power of courts to
strike down laws which they consider arbitrary or unreasonable, see, e.g., Poe
v. Ullman, 367 U. S. 497, 367 U. S. 539-555 (dissenting opinion), did not join t
he Court's opinion in Ferguson v. Skrupa.
[Footnote 2/19]
Justice Holmes, dissenting in Tyson, said:
"I think the proper course is to recognize that a state legislature can do whate
ver it sees fit to do unless it is restrained by some express prohibition in the
Constitution of the United States or of the State, and that Courts should be ca
reful not to extend such prohibitions beyond their obvious meaning by reading in
to them conceptions of public policy that the particular Court may happen to ent
ertain."
273 U.S. at 273 U. S. 446.
[Footnote 2/20]
Compare Nicchia v. New York, 254 U. S. 228, 254 U. S. 231, upholding a New York
dog-licensing statute on the ground that it did not "deprive dog owners of liber
ty without due process of law." And, as I said concurring in Rochin v. Californi
a, 342 U. S. 165, 342 U. S. 175,
"I believe that faithful adherence to the specific guarantees in the Bill of Rig
hts insures a more permanent protection of individual liberty than that which ca
n be afforded by the nebulous standards"
urged by my concurring Brethren today.
[Footnote 2/21]
Gideon v. Wainwright, 372 U. S. 335, and similar cases applying specific Bill of
Rights provisions to the States do not, in my view, stand for the proposition t
hat this Court can rely on its own concept of "ordered liberty" or "shocking the
conscience" or natural law to decide what laws it will permit state legislature
s to enact. Gideon, in applying to state prosecutions the Sixth Amendment's guar
antee of right to counsel, followed Palko v. Connecticut, 302 U. S. 319, which h
ad held that specific provisions of the Bill of Rights, rather than the Bill of
Rights as a whole, would be selectively applied to the States. While expressing
my own belief (not shared by MR. JUSTICE STEWART) that all the provisions of the
Bill of Rights were made applicable to the States by the Fourteenth Amendment,
in my dissent in Adamson v. California, 332 U. S. 46, 332 U. S. 89, I also said:
"If the choice must be between the selective process of the Palko decision apply
ing some of the Bill of Rights to the States, or the Twining rule applying none
of them, I would choose the Palko selective process."
Gideon and similar cases merely followed the Palko rule, which, in Adamson, I ag
reed to follow if necessary to make Bill of Rights safeguards applicable to the
States. See also Pointer v. Texas, 380 U. S. 400; Malloy v. Hogan, 378 U. S. 1.
[Footnote 2/22]
Hand, The Bill of Rights (1958) 70. See 381 U. S. supra. See generally id. at 35
-45.
[Footnote 2/23]
Id. at 73. While Judge Hand condemned as unjustified the invalidation of state l
aws under the natural law due process formula, see id. at 35-45, he also express
ed the view that this Court, in a number of cases, had gone too far in holding l
egislation to be in violation of specific guarantees of the Bill of Rights. Alth
ough I agree with his criticism of use of the due process formula, I do not agre
e with all the views he expressed about construing the specific guarantees of th
e Bill of Rights.
MR. JUSTICE STEWART, whom MR. JUSTICE BLACK joins, dissenting.
Since 1879, Connecticut has had on its books a law which forbids the use of cont
raceptives by anyone. I think this is an uncommonly silly law. As a practical ma
tter, the law is obviously unenforceable, except in the oblique context of the p
resent case. As a philosophical matter, I believe the use of contraceptives in t
he relationship of marriage should be left to personal and private choice, based
upon each individual's moral, ethical, and religious beliefs. As a matter of so
cial policy, I think professional counsel about methods of birth control should
be available to all, so that each individual's choice can be meaningfully made.
But we are not asked in this case to say whether we think this law is unwise, or
even asinine. We are asked to hold that it violates the United States Constitut
ion. And that I cannot do.
In the course of its opinion, the Court refers to no less than six Amendments to
the Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and t
he Fourteenth.
Page 381 U. S. 528
But the Court does not say which of these Amendments, if any, it thinks is infri
nged by this Connecticut law.
We are told that the Due Process Clause of the Fourteenth Amendment is not, as s
uch, the "guide" in this case. With that much, I agree. There is no claim that t
his law, duly enacted by the Connecticut Legislature, is unconstitutionally vagu
e. There is no claim that the appellants were denied any of the elements of proc
edural due process at their trial, so as to make their convictions constitutiona
lly invalid. And, as the Court says, the day has long passed since the Due Proce
ss Clause was regarded as a proper instrument for determining "the wisdom, need,
and propriety" of state laws. Compare Lochner v. New York, 198 U. S. 45, with F
erguson v. Skrupa, 372 U. S. 726. My Brothers HARLAN and WHITE to the contrary,
"[w]e have returned to the original constitutional proposition that courts do no
t substitute their social and economic beliefs for the judgment of legislative b
odies, who are elected to pass laws."
Ferguson v. Skrupa, supra, at 372 U. S. 730
As to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any
of them to invalidate this Connecticut law, even assuming that all those Amendme
nts are fully applicable against the States. [Footnote 3/1] It has
Page 381 U. S. 529
not even been argued that this is a law "respecting an establishment of religion
, or prohibiting the free exercise thereof." [Footnote 3/2] And surely, unless t
he solemn process of constitutional adjudication is to descend to the level of a
play on words, there is not involved here any abridgment of
"the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances. [Footnote
3/3]"
No soldier has been quartered in any house. [Footnote 3/4] There has been no sea
rch, and no seizure. [Footnote 3/5] Nobody has been compelled to be a witness ag
ainst himself. [Footnote 3/6]
The Court also quotes the Ninth Amendment, and my Brother GOLDBERG's concurring
opinion relies heavily upon it. But to say that the Ninth Amendment has anything
to do with this case is to turn somersaults with history. The Ninth Amendment,
like its companion, the Tenth, which this Court held "states but a truism that a
ll is retained which has not been surrendered," United States v. Darby, 312 U. S
. 100, 312 U. S. 124, was framed by James Madison and adopted by the States simp
ly to make clear that the adoption of the Bill of Rights did not alter the plan
that
Page 381 U. S. 530
the Federal Government was to be a government of express and limited powers, and
that all rights and powers not delegated to it were retained by the people and
the individual States. Until today, no member of this Court has ever suggested t
hat the Ninth Amendment meant anything else, and the idea that a federal court c
ould ever use the Ninth Amendment to annul a law passed by the elected represent
atives of the people of the State of Connecticut would have caused James Madison
no little wonder.
What provision of the Constitution, then, does make this state law invalid? The
Court says it is the right of privacy "created by several fundamental constituti
onal guarantees." With all deference, I can find no such general right of privac
y in the Bill of Rights, in any other part of the Constitution, or in any case e
ver before decided by this Court. [Footnote 3/7]
At the oral argument in this case, we were told that the Connecticut law does no
t "conform to current community standards." But it is not the function of this C
ourt to decide cases on the basis of community standards. We are here to decide
cases "agreeably to the Constitution and laws of the United States." It is the e
ssence of judicial
Page 381 U. S. 531
duty to subordinate our own personal views, our own ideas of what legislation is
wise and what is not. If, as I should surely hope, the law before us does not r
eflect he standards of the people of Connecticut, the people of Connecticut can
freely exercise their true Ninth and Tenth Amendment rights to persuade their el
ected representatives to repeal it. That is the constitutional way to take this
law off the books. [Footnote 3/8]
[Footnote 3/1]
The Amendments in question were, as everyone knows, originally adopted as limita
tions upon the power of the newly created Federal Government, not as limitations
upon the powers of the individual States. But the Court has held that many of t
he provisions of the first eight amendments are fully embraced by the Fourteenth
Amendment as limitations upon state action, and some members of the Court have
held the view that the adoption of the Fourteenth Amendment made every provision
of the first eight amendments fully applicable against the States. See Adamson
v. California, 332 U. S. 46, 332 U. S. 68 (dissenting opinion of MR. JUSTICE BLA
CK).
[Footnote 3/2]
U.S. Constitution, Amendment I. To be sure, the injunction contained in the Conn
ecticut statute coincides with the doctrine of certain religious faiths. But if
that were enough to invalidate a law under the provisions of the First Amendment
relating to religion, then most criminal laws would be invalidated. See, e.g.,
the Ten Commandments. The Bible, Exodus 20:2-17 (King James).
[Footnote 3/3]
U.S. Constitution, Amendment I. If all the appellants had done was to advise peo
ple that they thought the use of contraceptives was desirable, or even to counse
l their use, the appellants would, of course, have a substantial First Amendment
claim. But their activities went far beyond mere advocacy. They prescribed spec
ific contraceptive devices and furnished patients with the prescribed contracept
ive materials.
[Footnote 3/4]
U.S. Constitution, Amendment III.
[Footnote 3/5]
U.S. Constitution, Amendment IV.
[Footnote 3/6]
U.S. Constitution, Amendment V.
[Footnote 3/7]
Cases like Shelton v. Tucker, 364 U. S. 479 and Bates v. Little Rock, 361 U. S.
516, relied upon in the concurring opinions today, dealt with true First Amendme
nt rights of association, and are wholly inapposite here. See also, e.g., NAACP
v. Alabama, 357 U. S. 449; Edwards v. South Carolina, 372 U. S. 229. Our decisio
n in McLaughlin v. Florida, 379 U. S. 184, is equally far afield. That case held
invalid under the Equal Protection Clause, a state criminal law which discrimin
ated against Negroes.
The Court does not say how far the new constitutional right of privacy announced
today extends. See, e.g., Mueller, Legal Regulation of Sexual Conduct, at 127;
Ploscowe, Sex and the Law, at 189. I suppose, however, that, even after today, a
State can constitutionally still punish at least some offenses which are not co
mmitted in public.
[Footnote 3/8]
See Reynolds v. Sims, 377 U. S. 533, 377 U. S. 562. The Connecticut House of Rep
resentatives recently passed a bill (House Bill No. 2462) repealing the birth co
ntrol law. The State Senate has apparently not yet acted on the measure, and tod
ay is relieved of that responsibility by the Court. New Haven Journal-Courier, W
ed., May 19, 1965, p. 1, col. 4, and p. 13, col. 7.

Roe v. Wade
No. 70-18
Argued December 13, 1971
Reargued October 11, 1972
Decided January 22, 1973
410 U.S. 113
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
Syllabus
A pregnant single woman (Roe) brought a class action challenging the constitutio
nality of the Texas criminal abortion laws, which proscribe procuring or attempt
ing an abortion except on medical advice for the purpose of saving the mother's
life. A licensed physician (Hallford), who had two state abortion prosecutions p
ending against him, was permitted to intervene. A childless married couple (the
Does), the wife not being pregnant, separately attacked the laws, basing alleged
injury on the future possibilities of contraceptive failure, pregnancy, unprepa
redness for parenthood, and impairment of the wife's health. A three-judge Distr
ict Court, which consolidated the actions, held that Roe and Hallford, and membe
rs of their classes, had standing to sue and presented justiciable controversies
. Ruling that declaratory, though not injunctive, relief was warranted, the cour
t declared the abortion statutes void as vague and overbroadly infringing those
plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' com
plaint not justiciable. Appellants directly appealed to this Court on the injunc
tive rulings, and appellee cross-appealed from the District Court's grant of dec
laratory relief to Roe and Hallford.
Held:
1. While 28 U.S.C. § 1253 authorizes no direct appeal to this Court from the grant
or denial of declaratory relief alone, review is not foreclosed when the case i
s properly before the Court on appeal from specific denial of injunctive relief
and the arguments as to both injunctive and declaratory relief are necessarily i
dentical. P. 410 U. S. 123.
2. Roe has standing to sue; the Does and Hallford do not. Pp. 410 U. S. 123-129.
(a) Contrary to appellee's contention, the natural termination of Roe's pregnanc
y did not moot her suit. Litigation involving pregnancy, which is "capable of re
petition, yet evading review," is an exception to the usual federal rule that an
actual controversy
Page 410 U. S. 114
must exist at review stages, and not simply when the action is initiated. Pp. 41
0 U. S. 124-125.
(b) The District Court correctly refused injunctive, but erred in granting decla
ratory, relief to Hallford, who alleged no federally protected right not asserta
ble as a defense against the good faith state prosecutions pending against him.
Samuels v. Mackell, 401 U. S. 66. Pp. 410 U. S. 125-127.
(c) The Does' complaint, based as it is on contingencies, any one or more of whi
ch may not occur, is too speculative to present an actual case or controversy. P
p. 410 U. S. 127-129.
3. State criminal abortion laws, like those involved here, that except from crim
inality only a life-saving procedure on the mother's behalf without regard to th
e stage of her pregnancy and other interests involved violate the Due Process Cl
ause of the Fourteenth Amendment, which protects against state action the right
to privacy, including a woman's qualified right to terminate her pregnancy. Thou
gh the State cannot override that right, it has legitimate interests in protecti
ng both the pregnant woman's health and the potentiality of human life, each of
which interests grows and reaches a "compelling" point at various stages of the
woman's approach to term. Pp. 410 U. S. 147-164.
(a) For the stage prior to approximately the end of the first trimester, the abo
rtion decision and its effectuation must be left to the medical judgment of the
pregnant woman's attending physician. Pp. 410 U. S. 163, 410 U. S. 164.
(b) For the stage subsequent to approximately the end of the first trimester, th
e State, in promoting its interest in the health of the mother, may, if it choos
es, regulate the abortion procedure in ways that are reasonably related to mater
nal health. Pp. 410 U. S. 163, 410 U. S. 164.
(c) For the stage subsequent to viability the State, in promoting its interest i
n the potentiality of human life, may, if it chooses, regulate, and even proscri
be, abortion except where necessary, in appropriate medical judgment, for the pr
eservation of the life or health of the mother. Pp. 410 U. S. 163-164; 410 U. S.
164-165.
4. The State may define the term "physician" to mean only a physician currently
licensed by the State, and may proscribe any abortion by a person who is not a p
hysician as so defined. P. 410 U. S. 165.
5. It is unnecessary to decide the injunctive relief issue, since the Texas auth
orities will doubtless fully recognize the Court's ruling
Page 410 U. S. 115
that the Texas criminal abortion statutes are unconstitutional. P. 410 U. S. 166
.
314 F.Supp. 1217, affirmed in part and reversed in part.
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and DOU
GLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C.J., post, p
. 410 U. S. 207, DOUGLAS, J., post, p. 410 U. S. 209, and STEWART, J., post, p.
410 U. S. 167, filed concurring opinions. WHITE, J., filed a dissenting opinion,
in which REHNQUIST, J., joined, post, p. 410 U. S. 221. REHNQUIST, J., filed a
dissenting opinion, post, p. 410 U. S. 171.
Page 410 U. S. 116
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 410
U. S. 179, present constitutional challenges to state criminal abortion legisla
tion. The Texas statutes under attack here are typical of those that have been i
n effect in many States for approximately a century. The Georgia statutes, in co
ntrast, have a modern cast, and are a legislative product that, to an extent at
least, obviously reflects the influences of recent attitudinal change, of advanc
ing medical knowledge and techniques, and of new thinking about an old issue.
We forthwith acknowledge our awareness of the sensitive and emotional nature of
the abortion controversy, of the vigorous opposing views, even among physicians,
and of the deep and seemingly absolute convictions that the subject inspires. O
ne's philosophy, one's experiences, one's exposure to the raw edges of human exi
stence, one's religious training, one's attitudes toward life and family and the
ir values, and the moral standards one establishes and seeks to observe, are all
likely to influence and to color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to
complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement, free
of emotion and of predilection. We seek earnestly to do this, and, because we d
o, we
Page 410 U. S. 117
have inquired into, and in this opinion place some emphasis upon, medical and me
dical-legal history and what that history reveals about man's attitudes toward t
he abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holm
es' admonition in his now-vindicated dissent in Lochner v. New York, 198 U. S. 4
5, 198 U. S. 76 (1905):
"[The Constitution] 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 of the United States."
I
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the Stat
e's Penal Code. [Footnote 1] These make it a crime to "procure an abortion," as
therein
Page 410 U. S. 118
defined, or to attempt one, except with respect to "an abortion procured or atte
mpted by medical advice for the purpose of saving the life of the mother." Simil
ar statutes are in existence in a majority of the States. [Footnote 2]
Page 410 U. S. 119
Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49,
§ 1, set forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified
into language that has remained substantially unchanged to the present time. See
Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts.
2192-2197 (1866); Texas Rev.Stat., c. 8, Arts. 536-541 (1879); Texas Rev.Crim.S
tat., Arts. 1071-1076 (1911). The final article in each of these compilations pr
ovided the same exception, as does the present Article 1196, for an abortion by
"medical advice for the purpose of saving the life of the mother." [Footnote 3]
Page 410 U. S. 120
II
Jane Roe, [Footnote 4] a single woman who was residing in Dallas County, Texas,
instituted this federal action in March 1970 against the District Attorney of th
e county. She sought a declaratory judgment that the Texas criminal abortion sta
tutes were unconstitutional on their face, and an injunction restraining the def
endant from enforcing the statutes.
Roe alleged that she was unmarried and pregnant; that she wished to terminate he
r pregnancy by an abortion "performed by a competent, licensed physician, under
safe, clinical conditions"; that she was unable to get a "legal" abortion in Tex
as because her life did not appear to be threatened by the continuation of her p
regnancy; and that she could not afford to travel to another jurisdiction in ord
er to secure a legal abortion under safe conditions. She claimed that the Texas
statutes were unconstitutionally vague and that they abridged her right of perso
nal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendm
ents. By an amendment to her complaint, Roe purported to sue "on behalf of herse
lf and all other women" similarly situated.
James Hubert Hallford, a licensed physician, sought and was granted leave to int
ervene in Roe's action. In his complaint, he alleged that he had been arrested p
reviously for violations of the Texas abortion statutes, and
Page 410 U. S. 121
that two such prosecutions were pending against him. He described conditions of
patients who came to him seeking abortions, and he claimed that for many cases h
e, as a physician, was unable to determine whether they fell within or outside t
he exception recognized by Article 1196. He alleged that, as a consequence, the
statutes were vague and uncertain, in violation of the Fourteenth Amendment, and
that they violated his own and his patients' rights to privacy in the doctor-pa
tient relationship and his own right to practice medicine, rights he claimed wer
e guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
John and Mary Doe, [Footnote 5] a married couple, filed a companion complaint to
that of Roe. They also named the District Attorney as defendant, claimed like c
onstitutional deprivations, and sought declaratory and injunctive relief. The Do
es alleged that they were a childless couple; that Mrs. Doe was suffering from a
"neural-chemical" disorder; that her physician had "advised her to avoid pregna
ncy until such time as her condition has materially improved" (although a pregna
ncy at the present time would not present "a serious risk" to her life); that, p
ursuant to medical advice, she had discontinued use of birth control pills; and
that, if she should become pregnant, she would want to terminate the pregnancy b
y an abortion performed by a competent, licensed physician under safe, clinical
conditions. By an amendment to their complaint, the Does purported to sue "on be
half of themselves and all couples similarly situated."
The two actions were consolidated and heard together by a duly convened three-ju
dge district court. The suits thus presented the situations of the pregnant sing
le woman, the childless couple, with the wife not pregnant,
Page 410 U. S. 122
and the licensed practicing physician, all joining in the attack on the Texas cr
iminal abortion statutes. Upon the filing of affidavits, motions were made for d
ismissal and for summary judgment. The court held that Roe and members of her cl
ass, and Dr. Hallford, had standing to sue and presented justiciable controversi
es, but that the Does had failed to allege facts sufficient to state a present c
ontroversy, and did not have standing. It concluded that, with respect to the re
quests for a declaratory judgment, abstention was not warranted. On the merits,
the District Court held that the
"fundamental right of single women and married persons to choose whether to have
children is protected by the Ninth Amendment, through the Fourteenth Amendment,
"
and that the Texas criminal abortion statutes were void on their face because th
ey were both unconstitutionally vague and constituted an overbroad infringement
of the plaintiffs' Ninth Amendment rights. The court then held that abstention w
as warranted with respect to the requests for an injunction. It therefore dismis
sed the Does' complaint, declared the abortion statutes void, and dismissed the
application for injunctive relief. 314 F.Supp. 1217, 1225 (ND Tex.1970).
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. § 12
53, have appealed to this Court from that part of the District Court's judgment
denying the injunction. The defendant District Attorney has purported to cross-a
ppeal, pursuant to the same statute, from the court's grant of declaratory relie
f to Roe and Hallford. Both sides also have taken protective appeals to the Unit
ed States Court of Appeals for the Fifth Circuit. That court ordered the appeals
held in abeyance pending decision here. We postponed decision on jurisdiction t
o the hearing on the merits. 402 U.S. 941 (1971)
Page 410 U. S. 123
It might have been preferable if the defendant, pursuant to our Rule 20, had pre
sented to us a petition for certiorari before judgment in the Court of Appeals w
ith respect to the granting of the plaintiffs' prayer for declaratory relief. Ou
r decisions in Mitchell v. Donovan, 398 U. S. 427 (1970), and Gunn v. University
Committee, 399 U. S. 383 (1970), are to the effect that § 1253 does not authorize
an appeal to this Court from the grant or denial of declaratory relief alone. W
e conclude, nevertheless, that those decisions do not foreclose our review of bo
th the injunctive and the declaratory aspects of a case of this kind when it is
properly here, as this one is, on appeal under 1253 from specific denial of inju
nctive relief, and the arguments as to both aspects are necessarily identical. S
ee Carter v. Jury Comm'n, 396 U. S. 320 (1970); Florida Lime Growers v. Jacobsen
, 362 U. S. 73, 362 U. S. 80-81 (1960). It would be destructive of time and ener
gy for all concerned were we to rule otherwise. Cf. Doe v. Bolton, post, p. 410
U. S. 179.
IV
We are next confronted with issues of justiciability, standing, and abstention.
Have Roe and the Does established that "personal stake in the outcome of the con
troversy," Baker v. Carr, 369 U. S. 186, 369 U. S. 204 (1962), that insures that
"the dispute sought to be adjudicated will be presented in an adversary context
and in a form historically viewed as capable of judicial resolution,"
Flast v. Cohen, 392 U. S. 83, 392 U. S. 101 (1968), and Sierra Club v. Morton, 4
05 U. S. 727, 405 U. S. 732 (1972)? And what effect did the pendency of criminal
abortion charges against Dr. Hallford in state court have upon the propriety of
the federal court's granting relief to him as a plaintiff-intervenor?
Page 410 U. S. 124
A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is
a fictitious person. For purposes of her case, we accept as true, and as establ
ished, her existence; her pregnant state, as of the inception of her suit in Mar
ch 1970 and as late as May 21 of that year when she filed an alias affidavit wit
h the District Court; and her inability to obtain a legal abortion in Texas.
Viewing Roe's case as of the time of its filing and thereafter until as late a M
ay, there can be little dispute that it then presented a case or controversy and
that, wholly apart from the class aspects, she, as a pregnant single woman thwa
rted by the Texas criminal abortion laws, had standing to challenge those statut
es. Abele v. Markle, 452 F.2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 44
6 F.2d 833, 838-839 (CA6 1971); Poe v. Menghini, 339 F.Supp. 986, 990-991 (Kan.1
972). See Truax v. Raich, 239 U. S. 33 (1915). Indeed, we do not read the appell
ee's brief as really asserting anything to the contrary. The "logical nexus betw
een the status asserted and the claim sought to be adjudicated," Flast v. Cohen,
392 U.S. at 392 U. S. 102, and the necessary degree of contentiousness, Golden
v. Zwickler, 394 U. S. 103 (1969), are both present.
The appellee notes, however, that the record does not disclose that Roe was preg
nant at the time of the District Court hearing on May 22, 1970, [Footnote 6] or
on the following June 17 when the court's opinion and judgment were filed. And h
e suggests that Roe's case must now be moot because she and all other members of
her class are no longer subject to any 1970 pregnancy.
Page 410 U. S. 125
The usual rule in federal cases is that an actual controversy must exist at stag
es of appellate or certiorari review, and not simply at the date the action is i
nitiated. United States v. Munsingwear, Inc., 340 U. S. 36 (1950); Golden v. Zwi
ckler, supra; SEC v. Medical Committee for Human Rights, 404 U. S. 403 (1972).
But when, as here, pregnancy is a significant fact in the litigation, the normal
266-day human gestation period is so short that the pregnancy will come to term
before the usual appellate process is complete. If that termination makes a cas
e moot, pregnancy litigation seldom will survive much beyond the trial stage, an
d appellate review will be effectively denied. Our law should not be that rigid.
Pregnancy often comes more than once to the same woman, and in the general popu
lation, if man is to survive, it will always be with us. Pregnancy provides a cl
assic justification for a conclusion of nonmootness. It truly could be "capable
of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.
S. 498, 219 U. S. 515 (1911). See Moore v. Ogilvie, 394 U. S. 814, 394 U. S. 81
6 (1969); Carroll v. Princess Anne, 393 U. S. 175, 393 U. S. 178-179 (1968); Uni
ted States v. W. T. Grant Co., 345 U. S. 629, 345 U. S. 632-633 (1953).
We, therefore, agree with the District Court that Jane Roe had standing to under
take this litigation, that she presented a justiciable controversy, and that the
termination of her 1970 pregnancy has not rendered her case moot.
B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation
as a plaintiff-intervenor, alleging in his complaint that he:
"[I]n the past has been arrested for violating the Texas Abortion Laws and at th
e present time stands charged by indictment with violating said laws in the Crim
inal District Court of Dallas County, Texas to-wit: (1) The State of Texas vs.
Page 410 U. S. 126
James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James H. Hal
lford, No. C-692524-H. In both cases, the defendant is charged with abortion. .
. ."
In his application for leave to intervene, the doctor made like representations
as to the abortion charges pending in the state court. These representations wer
e also repeated in the affidavit he executed and filed in support of his motion
for summary judgment.
Dr. Hallford is, therefore, in the position of seeking, in a federal court, decl
aratory and injunctive relief with respect to the same statutes under which he s
tands charged in criminal prosecutions simultaneously pending in state court. Al
though he stated that he has been arrested in the past for violating the State's
abortion laws, he makes no allegation of any substantial and immediate threat t
o any federally protected right that cannot be asserted in his defense against t
he state prosecutions. Neither is there any allegation of harassment or bad fait
h prosecution. In order to escape the rule articulated in the cases cited in the
next paragraph of this opinion that, absent harassment and bad faith, a defenda
nt in a pending state criminal case cannot affirmatively challenge in federal co
urt the statutes under which the State is prosecuting him, Dr. Hallford seeks to
distinguish his status as a present state defendant from his status as a "poten
tial future defendant," and to assert only the latter for standing purposes here
.
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.
S. 66 (1971), compels the conclusion that the District Court erred when it grant
ed declaratory relief to Dr. Hallford instead of refraining from so doing. The c
ourt, of course, was correct in refusing to grant injunctive relief to the docto
r. The reasons supportive of that action, however, are those expressed in Samuel
s v. Mackell, supra, and in Younger v.
Page 410 U. S. 127
Harris, 401 U. S. 37 (1971); Boyle v. Landry, 401 U. S. 77 (1971); Perez v. Lede
sma, 401 U. S. 82 (1971); and Byrne v. Karaleis, 401 U. S. 216 (1971). See also
Dombrowski v. Pfister, 380 U. S. 479 (1965). We note, in passing, that Younger a
nd its companion cases were decided after the three-judge District Court decisio
n in this case.
Dr. Hallford's complaint in intervention, therefore, is to be dismissed. [Footno
te 7] He is remitted to his defenses in the state criminal proceedings against h
im. We reverse the judgment of the District Court insofar as it granted Dr. Hall
ford relief and failed to dismiss his complaint in intervention.
C. The Does. In view of our ruling as to Roe's standing in her case, the issue o
f the Does' standing in their case has little significance. The claims they asse
rt are essentially the same as those of Roe, and they attack the same statutes.
Nevertheless, we briefly note the Does' posture.
Their pleadings present them as a childless married couple, the woman not being
pregnant, who have no desire to have children at this time because of their havi
ng received medical advice that Mrs. Doe should avoid pregnancy, and for "other
highly personal reasons." But they "fear . . . they may face the prospect of bec
oming
Page 410 U. S. 128
parents." And if pregnancy ensues, they "would want to terminate" it by an abort
ion. They assert an inability to obtain an abortion legally in Texas and, conseq
uently, the prospect of obtaining an illegal abortion there or of going outside
Texas to some place where the procedure could be obtained legally and competentl
y.
We thus have as plaintiffs a married couple who have, as their asserted immediat
e and present injury, only an alleged "detrimental effect upon [their] marital h
appiness" because they are forced to "the choice of refraining from normal sexua
l relations or of endangering Mary Doe's health through a possible pregnancy." T
heir claim is that, sometime in the future, Mrs. Doe might become pregnant becau
se of possible failure of contraceptive measures, and, at that time in the futur
e, she might want an abortion that might then be illegal under the Texas statute
s.
This very phrasing of the Does' position reveals its speculative character. Thei
r alleged injury rests on possible future contraceptive failure, possible future
pregnancy, possible future unpreparedness for parenthood, and possible future i
mpairment of health. Any one or more of these several possibilities may not take
place, and all may not combine. In the Does' estimation, these possibilities mi
ght have some real or imagined impact upon their marital happiness. But we are n
ot prepared to say that the bare allegation of so indirect an injury is sufficie
nt to present an actual case or controversy. Younger v. Harris, 401 U.S. at 401
U. S. 41-42; Golden v. Zwickler, 394 U.S. at 394 U. S. 109-110; Abele v. Markle,
452 F.2d 1124-1125; Crossen v. Breckenridge, 446 F.2d 839. The Does' claim fall
s far short of those resolved otherwise in the cases that the Does urge upon us,
namely, Investment Co. Institute v. Camp, 401 U. S. 617 (1971); Data Processing
Service v. Camp, 397 U. S. 150 (1970);
Page 410 U. S. 129
and Epperson v. Arkansas, 393 U. S. 97 (1968). See also Truax v. Raich, 239 U. S
. 33 (1915).
The Does therefore are not appropriate plaintiffs in this litigation. Their comp
laint was properly dismissed by the District Court, and we affirm that dismissal
.
V
The principal thrust of appellant's attack on the Texas statutes is that they im
properly invade a right, said to be possessed by the pregnant woman, to choose t
o terminate her pregnancy. Appellant would discover this right in the concept of
personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; o
r in personal, marital, familial, and sexual privacy said to be protected by the
Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U. S. 479 (19
65); Eisenstadt v. Baird, 405 U. S. 438 (1972); id. at 405 U. S. 460 (WHITE, J.,
concurring in result); or among those rights reserved to the people by the Nint
h Amendment, Griswold v. Connecticut, 381 U.S. at 381 U. S. 486 (Goldberg, J., c
oncurring). Before addressing this claim, we feel it desirable briefly to survey
, in several aspects, the history of abortion, for such insight as that history
may afford us, and then to examine the state purposes and interests behind the c
riminal abortion laws.
VI
It perhaps is not generally appreciated that the restrictive criminal abortion l
aws in effect in a majority of States today are of relatively recent vintage. Th
ose laws, generally proscribing abortion or its attempt at any time during pregn
ancy except when necessary to preserve the pregnant woman's life, are not of anc
ient or even of common law origin. Instead, they derive from statutory changes e
ffected, for the most part, in the latter half of the 19th century.
Page 410 U. S. 130
1. Ancient attitudes. These are not capable of precise determination. We are tol
d that, at the time of the Persian Empire, abortifacients were known, and that c
riminal abortions were severely punished. [Footnote 8] We are also told, however
, that abortion was practiced in Greek times as well as in the Roman Era, [Footn
ote 9] and that "it was resorted to without scruple." [Footnote 10] The Ephesian
, Soranos, often described as the greatest of the ancient gynecologists, appears
to have been generally opposed to Rome's prevailing free-abortion practices. He
found it necessary to think first of the life of the mother, and he resorted to
abortion when, upon this standard, he felt the procedure advisable. [Footnote 1
1] Greek and Roman law afforded little protection to the unborn. If abortion was
prosecuted in some places, it seems to have been based on a concept of a violat
ion of the father's right to his offspring. Ancient religion did not bar abortio
n. [Footnote 12]
2. The Hippocratic Oath. What then of the famous Oath that has stood so long as
the ethical guide of the medical profession and that bears the name of the great
Greek (460(?)-377(?) B. C.), who has been described
Page 410 U. S. 131
as the Father of Medicine, the "wisest and the greatest practitioner of his art,
" and the "most important and most complete medical personality of antiquity," w
ho dominated the medical schools of his time, and who typified the sum of the me
dical knowledge of the past? [Footnote 13] The Oath varies somewhat according to
the particular translation, but in any translation the content is clear:
"I will give no deadly medicine to anyone if asked, nor suggest any such counsel
; and in like manner, I will not give to a woman a pessary to produce abortion,
[Footnote 14]"
or
"I will neither give a deadly drug to anybody if asked for it, nor will I make a
suggestion to this effect. Similarly, I will not give to a woman an abortive re
medy. [Footnote 15]"
Although the Oath is not mentioned in any of the principal briefs in this case o
r in Doe v. Bolton, post, p. 410 U. S. 179, it represents the apex of the develo
pment of strict ethical concepts in medicine, and its influence endures to this
day. Why did not the authority of Hippocrates dissuade abortion practice in his
time and that of Rome? The late Dr. Edelstein provides us with a theory: [Footno
te 16] The Oath was not uncontested even in Hippocrates' day; only the Pythagore
an school of philosophers frowned upon the related act of suicide. Most Greek th
inkers, on the other hand, commended abortion, at least prior to viability. See
Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagorean
s, however, it was a matter of dogma. For them, the embryo was animate from the
moment of conception, and abortion meant destruction of a living being. The abor
tion clause of the Oath, therefore, "echoes Pythagorean doctrines,"
Page 410 U. S. 132
and "[i]n no other stratum of Greek opinion were such views held or proposed in
the same spirit of uncompromising austerity." [Footnote 17]
Dr. Edelstein then concludes that the Oath originated in a group representing on
ly a small segment of Greek opinion, and that it certainly was not accepted by a
ll ancient physicians. He points out that medical writings down to Galen (A.D. 1
30-200) "give evidence of the violation of almost every one of its injunctions."
[Footnote 18] But with the end of antiquity, a decided change took place. Resis
tance against suicide and against abortion became common. The Oath came to be po
pular. The emerging teachings of Christianity were in agreement with the Pythago
rean ethic. The Oath "became the nucleus of all medical ethics," and "was applau
ded as the embodiment of truth." Thus, suggests Dr. Edelstein, it is "a Pythagor
ean manifesto, and not the expression of an absolute standard of medical conduct
." [Footnote 19]
This, it seems to us, is a satisfactory and acceptable explanation of the Hippoc
ratic Oath's apparent rigidity. It enables us to understand, in historical conte
xt, a long-accepted and revered statement of medical ethics.
3. The common law. It is undisputed that, at common law, abortion performed befo
re "quickening" -- the first recognizable movement of the fetus in utero, appear
ing usually from the 16th to the 18th week of pregnancy [Footnote 20] -- was not
an indictable offense. [Footnote 21] The absence
Page 410 U. S. 133
of a common law crime for pre-quickening abortion appears to have developed from
a confluence of earlier philosophical, theological, and civil and canon law con
cepts of when life begins. These disciplines variously approached the question i
n terms of the point at which the embryo or fetus became "formed" or recognizabl
y human, or in terms of when a "person" came into being, that is, infused with a
"soul" or "animated." A loose consensus evolved in early English law that these
events occurred at some point between conception and live birth. [Footnote 22]
This was "mediate animation." Although
Page 410 U. S. 134
Christian theology and the canon law came to fix the point of animation at 40 da
ys for a male and 80 days for a female, a view that persisted until the 19th cen
tury, there was otherwise little agreement about the precise time of formation o
r animation. There was agreement, however, that, prior to this point, the fetus
was to be regarded as part of the mother, and its destruction, therefore, was no
t homicide. Due to continued uncertainty about the precise time when animation o
ccurred, to the lack of any empirical basis for the 40-80-day view, and perhaps
to Aquinas' definition of movement as one of the two first principles of life, B
racton focused upon quickening as the critical point. The significance of quicke
ning was echoed by later common law scholars, and found its way into the receive
d common law in this country.
Whether abortion of a quick fetus was a felony at common law, or even a lesser c
rime, is still disputed. Bracton, writing early in the 13th century, thought it
homicide. [Footnote 23] But the later and predominant view, following the great
common law scholars, has been that it was, at most, a lesser offense. In a frequ
ently cited
Page 410 U. S. 135
passage, Coke took the position that abortion of a woman "quick with childe" is
"a great misprision, and no murder." [Footnote 24] Blackstone followed, saying t
hat, while abortion after quickening had once been considered manslaughter (thou
gh not murder), "modern law" took a less severe view. [Footnote 25] A recent rev
iew of the common law precedents argues, however, that those precedents contradi
ct Coke, and that even post-quickening abortion was never established as a commo
n law crime. [Footnote 26] This is of some importance, because, while most Ameri
can courts ruled, in holding or dictum, that abortion of an unquickened fetus wa
s not criminal under their received common law, [Footnote 27] others followed Co
ke in stating that abortion
Page 410 U. S. 136
of a quick fetus was a "misprision," a term they translated to mean "misdemeanor
." [Footnote 28] That their reliance on Coke on this aspect of the law was uncri
tical and, apparently in all the reported cases, dictum (due probably to the pau
city of common law prosecutions for post-quickening abortion), makes it now appe
ar doubtful that abortion was ever firmly established as a common law crime even
with respect to the destruction of a quick fetus.
4. The English statutory law. England's first criminal abortion statute, Lord El
lenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fe
tus, § 1, a capital crime, but, in § 2, it provided lesser penalties for the felony
of abortion before quickening, and thus preserved the "quickening" distinction.
This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, § 13
. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 &
1 Vict., c. 85. § 6, and did not reappear in the Offenses Against the Person Act
of 1861, 24 & 25 Vict., c. 100, § 59, that formed the core of English anti-abortio
n law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preserva
tion) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the des
truction of "the life of a child capable of being born alive." It made a willful
act performed with the necessary intent a felony. It contained a proviso that o
ne was not to be
Page 410 U. S. 137
found guilty of the offense
"unless it is proved that the act which caused the death of the child was not do
ne in good faith for the purpose only of preserving the life of the mother."
A seemingly notable development in the English law was the case of Rex v. Bourne
, [1939] 1 K.B. 687. This case apparently answered in the affirmative the questi
on whether an abortion necessary to preserve the life of the pregnant woman was
excepted from the criminal penalties of the 1861 Act. In his instructions to the
jury, Judge Macnaghten referred to the 1929 Act, and observed that that Act rel
ated to "the case where a child is killed by a willful act at the time when it i
s being delivered in the ordinary course of nature." Id. at 691. He concluded th
at the 1861 Act's use of the word "unlawfully," imported the same meaning expres
sed by the specific proviso in the 1929 Act, even though there was no mention of
preserving the mother's life in the 1861 Act. He then construed the phrase "pre
serving the life of the mother" broadly, that is, "in a reasonable sense," to in
clude a serious and permanent threat to the mother's health, and instructed the
jury to acquit Dr. Bourne if it found he had acted in a good faith belief that t
he abortion was necessary for this purpose. Id. at 693-694. The jury did acquit.
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 196
7, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an ab
ortion where two other licensed physicians agree (a)
"that the continuance of the pregnancy would involve risk to the life of the pre
gnant woman, or of injury to the physical or mental health of the pregnant woman
or any existing children of her family, greater than if the pregnancy were term
inated,"
or (b)
"that there is a substantial risk that, if the child were born it would suffer f
rom such physical or mental abnormalities as
Page 410 U. S. 138
to be seriously handicapped."
The Act also provides that, in making this determination, "account may be taken
of the pregnant woman's actual or reasonably foreseeable environment." It also p
ermits a physician, without the concurrence of others, to terminate a pregnancy
where he is of the good faith opinion that the abortion "is immediately necessar
y to save the life or to prevent grave permanent injury to the physical or menta
l health of the pregnant woman."
5. The American law. In this country, the law in effect in all but a few States
until mid-19th century was the preexisting English common law. Connecticut, the
first State to enact abortion legislation, adopted in 1821 that part of Lord Ell
enborough's Act that related to a woman "quick with child." [Footnote 29] The de
ath penalty was not imposed. Abortion before quickening was made a crime in that
State only in 1860. [Footnote 30] In 1828, New York enacted legislation [Footno
te 31] that, in two respects, was to serve as a model for early anti-abortion st
atutes. First, while barring destruction of an unquickened fetus as well as a qu
ick fetus, it made the former only a misdemeanor, but the latter second-degree m
anslaughter. Second, it incorporated a concept of therapeutic abortion by provid
ing that an abortion was excused if it
"shall have been necessary to preserve the life of such mother, or shall have be
en advised by two physicians to be necessary for such purpose."
By 1840, when Texas had received the common law, [Footnote 32] only eight Americ
an States
Page 410 U. S. 139
had statutes dealing with abortion. [Footnote 33] It was not until after the War
Between the States that legislation began generally to replace the common law.
Most of these initial statutes dealt severely with abortion after quickening, bu
t were lenient with it before quickening. Most punished attempts equally with co
mpleted abortions. While many statutes included the exception for an abortion th
ought by one or more physicians to be necessary to save the mother's life, that
provision soon disappeared, and the typical law required that the procedure actu
ally be necessary for that purpose. Gradually, in the middle and late 19th centu
ry, the quickening distinction disappeared from the statutory law of most States
and the degree of the offense and the penalties were increased. By the end of t
he 1950's, a large majority of the jurisdictions banned abortion, however and wh
enever performed, unless done to save or preserve the life of the mother. [Footn
ote 34] The exceptions, Alabama and the District of Columbia, permitted abortion
to preserve the mother's health. [Footnote 35] Three States permitted abortions
that were not "unlawfully" performed or that were not "without lawful justifica
tion," leaving interpretation of those standards to the courts. [Footnote 36] In
Page 410 U. S. 140
the past several years, however, a trend toward liberalization of abortion statu
tes has resulted in adoption, by about one-third of the States, of less stringen
t laws, most of them patterned after the ALI Model Penal Code, § 230.3, [Footnote
37] set forth as Appendix B to the opinion in Doe v. Bolton, post, p. 410 U. S.
205.
It is thus apparent that, at common law, at the time of the adoption of our Cons
titution, and throughout the major portion of the 19th century, abortion was vie
wed with less disfavor than under most American statutes currently in effect. Ph
rasing it another way, a woman enjoyed a substantially broader right to terminat
e a pregnancy than she does in most States today. At least with respect to the e
arly stage of pregnancy, and very possibly without such a limitation, the opport
unity
Page 410 U. S. 141
to make this choice was present in this country well into the 19th century. Even
later, the law continued for some time to treat less punitively an abortion pro
cured in early pregnancy.
6. The position of the American Medical Association. The anti-abortion mood prev
alent in this country in the late 19th century was shared by the medical profess
ion. Indeed, the attitude of the profession may have played a significant role i
n the enactment of stringent criminal abortion legislation during that period.
An AMA Committee on Criminal Abortion was appointed in May, 1857. It presented i
ts report, 12 Trans. of the Am.Med.Assn. 778 (1859), to the Twelfth Annual Meeti
ng. That report observed that the Committee had been appointed to investigate cr
iminal abortion "with a view to its general suppression." It deplored abortion a
nd its frequency and it listed three causes of "this general demoralization":
"The first of these causes is a widespread popular ignorance of the true charact
er of the crime -- a belief, even among mothers themselves, that the foetus is n
ot alive till after the period of quickening."
"The second of the agents alluded to is the fact that the profession themselves
are frequently supposed careless of foetal life. . . ."
"The third reason of the frightful extent of this crime is found in the grave de
fects of our laws, both common and statute, as regards the independent and actua
l existence of the child before birth, as a living being. These errors, which ar
e sufficient in most instances to prevent conviction, are based, and only based,
upon mistaken and exploded medical dogmas. With strange inconsistency, the law
fully acknowledges the foetus in utero and its inherent rights, for civil purpos
es; while personally and as criminally affected, it fails to recognize it,
Page 410 U. S. 142
and to its life as yet denies all protection."
Id. at 776. The Committee then offered, and the Association adopted, resolutions
protesting "against such unwarrantable destruction of human life," calling upon
state legislatures to revise their abortion laws, and requesting the cooperatio
n of state medical societies "in pressing the subject." Id. at 28, 78.
In 1871, a long and vivid report was submitted by the Committee on Criminal Abor
tion. It ended with the observation,
"We had to deal with human life. In a matter of less importance, we could entert
ain no compromise. An honest judge on the bench would call things by their prope
r names. We could do no less."
22 Trans. of the Am.Med.Assn. 268 (1871). It proffered resolutions, adopted by t
he Association, id. at 38-39, recommending, among other things, that it
"be unlawful and unprofessional for any physician to induce abortion or prematur
e labor without the concurrent opinion of at least one respectable consulting ph
ysician, and then always with a view to the safety of the child -- if that be po
ssible,"
and calling
"the attention of the clergy of all denominations to the perverted views of mora
lity entertained by a large class of females -- aye, and men also, on this impor
tant question."
Except for periodic condemnation of the criminal abortionist, no further formal
AMA action took place until 1967. In that year, the Committee on Human Reproduct
ion urged the adoption of a stated policy of opposition to induced abortion exce
pt when there is "documented medical evidence" of a threat to the health or life
of the mother, or that the child "may be born with incapacitating physical defo
rmity or mental deficiency," or that a pregnancy "resulting from legally establi
shed statutory or forcible rape or incest may constitute a threat to the mental
or physical health of the
Page 410 U. S. 143
patient," two other physicians "chosen because of their recognized professional
competence have examined the patient and have concurred in writing," and the pro
cedure "is performed in a hospital accredited by the Joint Commission on Accredi
tation of Hospitals." The providing of medical information by physicians to stat
e legislatures in their consideration of legislation regarding therapeutic abort
ion was "to be considered consistent with the principles of ethics of the Americ
an Medical Association." This recommendation was adopted by the House of Delegat
es. Proceedings of the AMA House of Delegates 40-51 (June 1967).
In 1970, after the introduction of a variety of proposed resolutions and of a re
port from its Board of Trustees, a reference committee noted "polarization of th
e medical profession on this controversial issue"; division among those who had
testified; a difference of opinion among AMA councils and.committees; "the remar
kable shift in testimony" in six months, felt to be influenced "by the rapid cha
nges in state laws and by the judicial decisions which tend to make abortion mor
e freely available; " and a feeling "that this trend will continue." On June 25,
1970, the House of Delegates adopted preambles and most of the resolutions prop
osed by the reference committee. The preambles emphasized "the best interests of
the patient," "sound clinical judgment," and "informed patient consent," in con
trast to "mere acquiescence to the patient's demand." The resolutions asserted t
hat abortion is a medical procedure that should be performed by a licensed physi
cian in an accredited hospital only after consultation with two other physicians
and in conformity with state law, and that no party to the procedure should be
required to violate personally held moral principles. [Footnote 38] Proceedings
Page 410 U. S. 144
of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council rendered
a complementary opinion. [Footnote 39]
7. The position of the American Public Health Association. In October, 1970, the
Executive Board of the APHA adopted Standards for Abortion Services. These were
five in number:
"a. Rapid and simple abortion referral must be readily available through state a
nd local public
Page 410 U. S. 145
health departments, medical societies, or other nonprofit organizations."
"b. An important function of counseling should be to simplify and expedite the p
rovision of abortion services; it should not delay the obtaining of these servic
es."
"c. Psychiatric consultation should not be mandatory. As in the case of other sp
ecialized medical services, psychiatric consultation should be sought for defini
te indications, and not on a routine basis."
"d. A wide range of individuals from appropriately trained, sympathetic voluntee
rs to highly skilled physicians may qualify as abortion counselors."
"e. Contraception and/or sterilization should be discussed with each abortion pa
tient."
"Recommended Standards for Abortion Services, 61 Am.J.Pub.Health 396 (1971). Amo
ng factors pertinent to life and health risks associated with abortion were thre
e that 'are recognized as important': "
"a. the skill of the physician,"
"b. the environment in which the abortion is performed, and above all"
"c. the duration of pregnancy, as determined by uterine size and confirmed by me
nstrual history."
Id. at 397.
It was said that "a well equipped hospital" offers more protection
"to cope with unforeseen difficulties than an office or clinic without such reso
urces. . . . The factor of gestational age is of overriding importance."
Thus, it was recommended that abortions in the second trimester and early aborti
ons in the presence of existing medical complications be performed in hospitals
as inpatient procedures. For pregnancies in the first trimester,
Page 410 U. S. 146
abortion in the hospital with or without overnight stay "is probably the safest
practice." An abortion in an extramural facility, however, is an acceptable alte
rnative "provided arrangements exist in advance to admit patients promptly if un
foreseen complications develop." Standards for an abortion facility were listed.
It was said that, at present, abortions should be performed by physicians or os
teopaths who are licensed to practice and who have "adequate training." Id. at 3
98.
8. The position of the American Bar Association. At its meeting in February, 197
2, the ABA House of Delegates approved, with 17 opposing votes, the Uniform Abor
tion Act that had been drafted and approved the preceding August by the Conferen
ce of Commissioners on Uniform State Laws. 58 A.B.A.J. 380 (1972). We set forth
the Act in full in the margin. [Footnote 40] The
Page 410 U. S. 147
Opinion of the Court Conference has appended an enlightening Prefatory Note. [Fo
otnote 41]
VII
Three reasons have been advanced to explain historically the enactment of crimin
al abortion laws in the 19th century and to justify their continued existence.
Page 410 U. S. 148
It has been argued occasionally that these laws were the product of a Victorian
social concern to discourage illicit sexual conduct. Texas, however, does not ad
vance this justification in the present case, and it appears that no court or co
mmentator has taken the argument seriously. [Footnote 42] The appellants and ami
ci contend, moreover, that this is not a proper state purpose, at all and sugges
t that, if it were, the Texas statutes are overbroad in protecting it, since the
law fails to distinguish between married and unwed mothers.
A second reason is concerned with abortion as a medical procedure. When most cri
minal abortion laws were first enacted, the procedure was a hazardous one for th
e woman. [Footnote 43] This was particularly true prior to the
Page 410 U. S. 149
development of antisepsis. Antiseptic techniques, of course, were based on disco
veries by Lister, Pasteur, and others first announced in 1867, but were not gene
rally accepted and employed until about the turn of the century. Abortion mortal
ity was high. Even after 1900, and perhaps until as late as the development of a
ntibiotics in the 1940's, standard modern techniques such as dilation and curett
age were not nearly so safe as they are today. Thus, it has been argued that a S
tate's real concern in enacting a criminal abortion law was to protect the pregn
ant woman, that is, to restrain her from submitting to a procedure that placed h
er life in serious jeopardy.
Modern medical techniques have altered this situation. Appellants and various am
ici refer to medical data indicating that abortion in early pregnancy, that is,
prior to the end of the first trimester, although not without its risk, is now r
elatively safe. Mortality rates for women undergoing early abortions, where the
procedure is legal, appear to be as low as or lower than the rates for normal ch
ildbirth. [Footnote 44] Consequently, any interest of the State in protecting th
e woman from an inherently hazardous procedure, except when it would be equally
dangerous for her to forgo it, has largely disappeared. Of course, important sta
te interests in the areas of health and medical standards do remain.
Page 410 U. S. 150
The State has a legitimate interest in seeing to it that abortion, like any othe
r medical procedure, is performed under circumstances that insure maximum safety
for the patient. This interest obviously extends at least to the performing phy
sician and his staff, to the facilities involved, to the availability of after-c
are, and to adequate provision for any complication or emergency that might aris
e. The prevalence of high mortality rates at illegal "abortion mills" strengthen
s, rather than weakens, the State's interest in regulating the conditions under
which abortions are performed. Moreover, the risk to the woman increases as her
pregnancy continues. Thus, the State retains a definite interest in protecting t
he woman's own health and safety when an abortion is proposed at a late stage of
pregnancy.
The third reason is the State's interest -- some phrase it in terms of duty -- i
n protecting prenatal life. Some of the argument for this justification rests on
the theory that a new human life is present from the moment of conception. [Foo
tnote 45] The State's interest and general obligation to protect life then exten
ds, it is argued, to prenatal life. Only when the life of the pregnant mother he
rself is at stake, balanced against the life she carries within her, should the
interest of the embryo or fetus not prevail. Logically, of course, a legitimate
state interest in this area need not stand or fall on acceptance of the belief t
hat life begins at conception or at some other point prior to live birth. In ass
essing the State's interest, recognition may be given to the less rigid claim th
at as long as at least potential life is involved, the State may assert interest
s beyond the protection of the pregnant woman alone.
Page 410 U. S. 151
Parties challenging state abortion laws have sharply disputed in some courts the
contention that a purpose of these laws, when enacted, was to protect prenatal
life. [Footnote 46] Pointing to the absence of legislative history to support th
e contention, they claim that most state laws were designed solely to protect th
e woman. Because medical advances have lessened this concern, at least with resp
ect to abortion in early pregnancy, they argue that with respect to such abortio
ns the laws can no longer be justified by any state interest. There is some scho
larly support for this view of original purpose. [Footnote 47] The few state cou
rts called upon to interpret their laws in the late 19th and early 20th centurie
s did focus on the State's interest in protecting the woman's health, rather tha
n in preserving the embryo and fetus. [Footnote 48] Proponents of this view poin
t out that in many States, including Texas, [Footnote 49] by statute or judicial
interpretation, the pregnant woman herself could not be prosecuted for self-abo
rtion or for cooperating in an abortion performed upon her by another. [Footnote
50] They claim that adoption of the "quickening" distinction through received c
ommon
Page 410 U. S. 152
law and state statutes tacitly recognizes the greater health hazards inherent in
late abortion and impliedly repudiates the theory that life begins at conceptio
n.
It is with these interests, and the eight to be attached to them, that this case
is concerned.
VIII
The Constitution does not explicitly mention any right of privacy. In a line of
decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsfor
d, 141 U. S. 250, 141 U. S. 251 (1891), the Court has recognized that a right of
personal privacy, or a guarantee of certain areas or zones of privacy, does exi
st under the Constitution. In varying contexts, the Court or individual Justices
have, indeed, found at least the roots of that right in the First Amendment, St
anley v. Georgia, 394 U. S. 557, 394 U. S. 564 (1969); in the Fourth and Fifth A
mendments, Terry v. Ohio, 392 U. S. 1, 392 U. S. 8-9 (1968), Katz v. United Stat
es, 389 U. S. 347, 389 U. S. 350 (1967), Boyd v. United States, 116 U. S. 616 (1
886), see Olmstead v. United States, 277 U. S. 438, 277 U. S. 478 (1928) (Brande
is, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connect
icut, 381 U.S. at 381 U. S. 484-485; in the Ninth Amendment, id. at 381 U. S. 48
6 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the fir
st section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U. S. 390, 26
2 U. S. 399 (1923). These decisions make it clear that only personal rights that
can be deemed "fundamental" or "implicit in the concept of ordered liberty," Pa
lko v. Connecticut, 302 U. S. 319, 302 U. S. 325 (1937), are included in this gu
arantee of personal privacy. They also make it clear that the right has some ext
ension to activities relating to marriage, Loving v. Virginia, 388 U. S. 1, 388
U. S. 12 (1967); procreation, Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541-
542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 405 U. S. 453-454; i
d. at 405 U. S. 460, 405 U. S. 463-465
Page 410 U. S. 153
(WHITE, J., concurring in result); family relationships, Prince v. Massachusetts
, 321 U. S. 158, 321 U. S. 166 (1944); and childrearing and education, Pierce v.
Society of Sisters, 268 U. S. 510, 268 U. S. 535 (1925), Meyer v. Nebraska, sup
ra.
This right of privacy, whether it be founded in the Fourteenth Amendment's conce
pt of personal liberty and restrictions upon state action, as we feel it is, or,
as the District Court determined, in the Ninth Amendment's reservation of right
s to the people, is broad enough to encompass a woman's decision whether or not
to terminate her pregnancy. The detriment that the State would impose upon the p
regnant woman by denying this choice altogether is apparent. Specific and direct
harm medically diagnosable even in early pregnancy may be involved. Maternity,
or additional offspring, may force upon the woman a distressful life and future.
Psychological harm may be imminent. Mental and physical health may be taxed by
child care. There is also the distress, for all concerned, associated with the u
nwanted child, and there is the problem of bringing a child into a family alread
y unable, psychologically and otherwise, to care for it. In other cases, as in t
his one, the additional difficulties and continuing stigma of unwed motherhood m
ay be involved. All these are factors the woman and her responsible physician ne
cessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the
woman's right is absolute and that she is entitled to terminate her pregnancy at
whatever time, in whatever way, and for whatever reason she alone chooses. With
this we do not agree. Appellant's arguments that Texas either has no valid inte
rest at all in regulating the abortion decision, or no interest strong enough to
support any limitation upon the woman's sole determination, are unpersuasive. T
he
Page 410 U. S. 154
Court's decisions recognizing a right of privacy also acknowledge that some stat
e regulation in areas protected by that right is appropriate. As noted above, a
State may properly assert important interests in safeguarding health, in maintai
ning medical standards, and in protecting potential life. At some point in pregn
ancy, these respective interests become sufficiently compelling to sustain regul
ation of the factors that govern the abortion decision. The privacy right involv
ed, therefore, cannot be said to be absolute. In fact, it is not clear to us tha
t the claim asserted by some amici that one has an unlimited right to do with on
e's body as one pleases bears a close relationship to the right of privacy previ
ously articulated in the Court's decisions. The Court has refused to recognize a
n unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U. S.
11 (1905) (vaccination); Buck v. Bell, 274 U. S. 200 (1927) ( sterilization).
We, therefore, conclude that the right of personal privacy includes the abortion
decision, but that this right is not unqualified, and must be considered agains
t important state interests in regulation.
We note that those federal and state courts that have recently considered aborti
on law challenges have reached the same conclusion. A majority, in addition to t
he District Court in the present case, have held state laws unconstitutional, at
least in part, because of vagueness or because of overbreadth and abridgment of
rights. Abele v. Markle, 342 F.Supp. 800 (Conn.1972), appeal docketed, No. 72-5
6; Abele v. Markle, 351 F.Supp. 224 (Conn.1972), appeal docketed, No. 72-730; Do
e v. Bolton, 319 F.Supp. 1048 (ND Ga.1970), appeal decided today, post, p. 410 U
. S. 179; Doe v. Scott, 321 F.Supp. 1385 (ND Ill.1971), appeal docketed, No. 70-
105; Poe v. Menghini, 339 F.Supp. 986 (Kan.1972); YWCA v. Kuler, 342 F.Supp. 104
8 (NJ 1972); Babbitz v. McCann,
Page 410 U. S. 155
310 F.Supp. 293 (ED Wis.1970), appeal dismissed, 400 U. S. 1 (1970); People v. B
elous, 71 Cal.2d 954, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915 (1970); St
ate v. Barquet, 262 So.2d 431 (Fla.1972).
Others have sustained state statutes. Crossen v. Attorney General, 344 F.Supp. 5
87 (ED Ky.1972), appeal docketed, No. 72-256; Rosen v. Louisiana State Board of
Medical Examiners, 318 F.Supp. 1217 (ED La.1970), appeal docketed, No. 70-42; Co
rkey v. Edwards, 322 F.Supp. 1248 (WDNC 1971), appeal docketed, No. 71-92; Stein
berg v. Brown, 321 F.Supp. 741 (ND Ohio 1970); Doe v. Rampton (Utah 1971), appea
l docketed, No. 71-5666; Cheaney v. State, ___ Ind. ___, 285 N.E.2d 265 (1972);
Spears v. State, 257 So.2d 876 (Miss. 1972); State v. Munson, 86 S.D. 663, 201 N
.W.2d 123 (1972), appeal docketed, No. 72-631.
Although the results are divided, most of these courts have agreed that the righ
t of privacy, however based, is broad enough to cover the abortion decision; tha
t the right, nonetheless, is not absolute, and is subject to some limitations; a
nd that, at some point, the state interests as to protection of health, medical
standards, and prenatal life, become dominant. We agree with this approach.
Where certain "fundamental rights" are involved, the Court has held that regulat
ion limiting these rights may be justified only by a "compelling state interest,
" Kramer v. Union Free School District, 395 U. S. 621, 395 U. S. 627 (1969); Sha
piro v. Thompson, 394 U. S. 618, 394 U. S. 634 (1969), Sherbert v. Verner, 374 U
. S. 398, 374 U. S. 406 (1963), and that legislative enactments must be narrowly
drawn to express only the legitimate state interests at stake. Griswold v. Conn
ecticut, 381 U.S. at 381 U. S. 485; Aptheker v. Secretary of State, 378 U. S. 50
0, 378 U. S. 508 (1964); Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 307-3
08 (1940); see
Page 410 U. S. 156
Eisenstadt v. Baird, 405 U.S. at 405 U. S. 460, 463-464 (WHITE, J., concurring i
n result).
In the recent abortion cases cited above, courts have recognized these principle
s. Those striking down state laws have generally scrutinized the State's interes
ts in protecting health and potential life, and have concluded that neither inte
rest justified broad limitations on the reasons for which a physician and his pr
egnant patient might decide that she should have an abortion in the early stages
of pregnancy. Courts sustaining state laws have held that the State's determina
tions to protect health or prenatal life are dominant and constitutionally justi
fiable.
IX
The District Court held that the appellee failed to meet his burden of demonstra
ting that the Texas statute's infringement upon Roe's rights was necessary to su
pport a compelling state interest, and that, although the appellee presented "se
veral compelling justifications for state presence in the area of abortions," th
e statutes outstripped these justifications and swept "far beyond any areas of c
ompelling state interest." 314 F.Supp. at 1222-1223. Appellant and appellee both
contest that holding. Appellant, as has been indicated, claims an absolute righ
t that bars any state imposition of criminal penalties in the area. Appellee arg
ues that the State's determination to recognize and protect prenatal life from a
nd after conception constitutes a compelling state interest. As noted above, we
do not agree fully with either formulation.
A. The appellee and certain amici argue that the fetus is a "person" within the
language and meaning of the Fourteenth Amendment. In support of this, they outli
ne at length and in detail the well known facts of fetal development. If this su
ggestion of personhood is established, the appellant's case, of course, collapse
s,
Page 410 U. S. 157
for the fetus' right to life would then be guaranteed specifically by the Amendm
ent. The appellant conceded as much on reargument. [Footnote 51] On the other ha
nd, the appellee conceded on reargument [Footnote 52] that no case could be cite
d that holds that a fetus is a person within the meaning of the Fourteenth Amend
ment.
The Constitution does not define "person" in so many words. Section 1 of the Fou
rteenth Amendment contains three references to "person." The first, in defining
"citizens," speaks of "persons born or naturalized in the United States." The wo
rd also appears both in the Due Process Clause and in the Equal Protection Claus
e. "Person" is used in other places in the Constitution: in the listing of quali
fications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in t
he Apportionment Clause, Art. I, § 2, cl. 3; [Footnote 53] in the Migration and Im
portation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8
; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in th
e provision outlining qualifications for the office of President, Art. II, § 1, cl
. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugiti
ve Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as w
ell as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances,
the use of the word is such that it has application only post-natally. None ind
icates, with any assurance, that it has any possible pre-natal application. [Foo
tnote 54]
Page 410 U. S. 158
All this, together with our observation, supra, that, throughout the major porti
on of the 19th century, prevailing legal abortion practices were far freer than
they are today, persuades us that the word "person," as used in the Fourteenth A
mendment, does not include the unborn. [Footnote 55] This is in accord with the
results reached in those few cases where the issue has been squarely presented.
McGarvey v. Magee-Womens Hospital, 340 F.Supp. 751 (WD Pa.1972); Byrn v. New Yor
k City Health & Hospitals Corp., 31 N.Y.2d 194, 286 N.E.2d 887 (1972), appeal do
cketed, No. 72-434; Abele v. Markle, 351 F.Supp. 224 (Conn.1972), appeal dockete
d, No. 72-730. Cf. Cheaney v. State, ___ Ind. at ___, 285 N.E.2d at 270; Montana
v. Rogers, 278 F.2d 68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U
. S. 308 (1961); Keeler v. Superior Court, 2 Cal.3d 619, 470 P.2d 617 (1970); St
ate v. Dickinson, 28
Page 410 U. S. 159
Ohio St.2d 65, 275 N.E.2d 599 (1971). Indeed, our decision in United States v. V
uitch, 402 U. S. 62 (1971), inferentially is to the same effect, for we there wo
uld not have indulged in statutory interpretation favorable to abortion in speci
fied circumstances if the necessary consequence was the termination of life enti
tled to Fourteenth Amendment protection.
This conclusion, however, does not of itself fully answer the contentions raised
by Texas, and we pass on to other considerations.
B. The pregnant woman cannot be isolated in her privacy. She carries an embryo a
nd, later, a fetus, if one accepts the medical definitions of the developing you
ng in the human uterus. See Dorland's Illustrated Medical Dictionary 478-479, 54
7 (24th ed.1965). The situation therefore is inherently different from marital i
ntimacy, or bedroom possession of obscene material, or marriage, or procreation,
or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and
Pierce and Meyer were respectively concerned. As we have intimated above, it is
reasonable and appropriate for a State to decide that, at some point in time an
other interest, that of health of the mother or that of potential human life, be
comes significantly involved. The woman's privacy is no longer sole and any righ
t of privacy she possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at conception
and is present throughout pregnancy, and that, therefore, the State has a compe
lling interest in protecting that life from and after conception. We need not re
solve the difficult question of when life begins. When those trained in the resp
ective disciplines of medicine, philosophy, and theology are unable to arrive at
any consensus, the judiciary, at this point in the development of man's knowled
ge, is not in a position to speculate as to the answer.
Page 410 U. S. 160
It should be sufficient to note briefly the wide divergence of thinking on this
most sensitive and difficult question. There has always been strong support for
the view that life does not begin until live' birth. This was the belief of the
Stoics. [Footnote 56] It appears to be the predominant, though not the unanimous
, attitude of the Jewish faith. [Footnote 57] It may be taken to represent also
the position of a large segment of the Protestant community, insofar as that can
be ascertained; organized groups that have taken a formal position on the abort
ion issue have generally regarded abortion as a matter for the conscience of the
individual and her family. [Footnote 58] As we have noted, the common law found
greater significance in quickening. Physician and their scientific colleagues h
ave regarded that event with less interest and have tended to focus either upon
conception, upon live birth, or upon the interim point at which the fetus become
s "viable," that is, potentially able to live outside the mother's womb, albeit
with artificial aid. [Footnote 59] Viability is usually placed at about seven mo
nths (28 weeks) but may occur earlier, even at 24 weeks. [Footnote 60] The Arist
otelian theory of "mediate animation," that held sway throughout the Middle Ages
and the Renaissance in Europe, continued to be official Roman Catholic dogma un
til the 19th century, despite opposition to this "ensoulment" theory from those
in the Church who would recognize the existence of life from
Page 410 U. S. 161
the moment of conception. [Footnote 61] The latter is now, of course, the offici
al belief of the Catholic Church. As one brief amicus discloses, this is a view
strongly held by many non-Catholics as well, and by many physicians. Substantial
problems for precise definition of this view are posed, however, by new embryol
ogical data that purport to indicate that conception is a "process" over time, r
ather than an event, and by new medical techniques such as menstrual extraction,
the "morning-after" pill, implantation of embryos, artificial insemination, and
even artificial wombs. [Footnote 62]
In areas other than criminal abortion, the law has been reluctant to endorse any
theory that life, as we recognize it, begins before live birth, or to accord le
gal rights to the unborn except in narrowly defined situations and except when t
he rights are contingent upon live birth. For example, the traditional rule of t
ort law denied recovery for prenatal injuries even though the child was born ali
ve. [Footnote 63] That rule has been changed in almost every jurisdiction. In mo
st States, recovery is said to be permitted only if the fetus was viable, or at
least quick, when the injuries were sustained, though few
Page 410 U. S. 162
courts have squarely so held. [Footnote 64] In a recent development, generally o
pposed by the commentators, some States permit the parents of a stillborn child
to maintain an action for wrongful death because of prenatal injuries. [Footnote
65] Such an action, however, would appear to be one to vindicate the parents' i
nterest and is thus consistent with the view that the fetus, at most, represents
only the potentiality of life. Similarly, unborn children have been recognized
as acquiring rights or interests by way of inheritance or other devolution of pr
operty, and have been represented by guardians ad litem. [Footnote 66] Perfectio
n of the interests involved, again, has generally been contingent upon live birt
h. In short, the unborn have never been recognized in the law as persons in the
whole sense.
X
In view of all this, we do not agree that, by adopting one theory of life, Texas
may override the rights of the pregnant woman that are at stake. We repeat, how
ever, that the State does have an important and legitimate interest in preservin
g and protecting the health of the pregnant woman, whether she be a resident of
the State or a nonresident who seeks medical consultation and treatment there, a
nd that it has still another important and legitimate interest in protecting the
potentiality of human life. These interests are separate and distinct. Each gro
ws in substantiality as the woman approaches
Page 410 U. S. 163
term and, at a point during pregnancy, each becomes "compelling."
With respect to the State's important and legitimate interest in the health of t
he mother, the "compelling" point, in the light of present medical knowledge, is
at approximately the end of the first trimester. This is so because of the now-
established medical fact, referred to above at 410 U. S. 149, that, until the en
d of the first trimester mortality in abortion may be less than mortality in nor
mal childbirth. It follows that, from and after this point, a State may regulate
the abortion procedure to the extent that the regulation reasonably relates to
the preservation and protection of maternal health. Examples of permissible stat
e regulation in this area are requirements as to the qualifications of the perso
n who is to perform the abortion; as to the licensure of that person; as to the
facility in which the procedure is to be performed, that is, whether it must be
a hospital or may be a clinic or some other place of less-than-hospital status;
as to the licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this "
compelling" point, the attending physician, in consultation with his patient, is
free to determine, without regulation by the State, that, in his medical judgme
nt, the patient's pregnancy should be terminated. If that decision is reached, t
he judgment may be effectuated by an abortion free of interference by the State.
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 presu
mably has the capability of meaningful life outside the mother's womb. State reg
ulation protective of fetal life after viability thus has both logical and biolo
gical justifications. If the State is interested in protecting fetal life after
viability, it may go so far as to proscribe abortion
Page 410 U. S. 164
during that period, except when it is necessary to preserve the life or health o
f the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in restrict
ing legal abortions to those "procured or attempted by medical advice for the pu
rpose of saving the life of the mother," sweeps too broadly. The statute makes n
o distinction between abortions performed early in pregnancy and those performed
later, and it limits to a single reason, "saving" the mother's life, the legal
justification for the procedure. The statute, therefore, cannot survive the cons
titutional attack made upon it here.
This conclusion makes it unnecessary for us to consider the additional challenge
to the Texas statute asserted on grounds of vagueness. See United States v. Vui
tch, 402 U.S. at 402 U. S. 67-72.
XI
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts fro
m criminality only a lifesaving procedure on behalf of the mother, without regar
d to pregnancy stage and without recognition of the other interests involved, is
violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abo
rtion 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, th
e State, in promoting its interest in the health of the mother, may, if it choos
es, regulate the abortion procedure in ways that are reasonably related to mater
nal health.
(c) For the stage subsequent to viability, the State in promoting its interest i
n the potentiality of human life
Page 410 U. S. 165
may, if it chooses, regulate, and even proscribe, abortion except where it is ne
cessary, in appropriate medical judgment, for the preservation of the life or he
alth of the mother.
2. The State may define the term "physician," as it has been employed in the pre
ceding paragraphs of this Part XI of this opinion, to mean only a physician curr
ently licensed by the State, and may proscribe any abortion by a person who is n
ot a physician as so defined.
In Doe v. Bolton, post, p. 410 U. S. 179, procedural requirements contained in o
ne of the modern abortion statutes are considered. That opinion and this one, of
course, are to be read together. [Footnote 67]
This holding, we feel, is consistent with the relative weights of the respective
interests involved, with the lessons and examples of medical and legal history,
with the lenity of the common law, and with the demands of the profound problem
s of the present day. The decision leaves the State free to place increasing res
trictions on abortion as the period of pregnancy lengthens, so long as those res
trictions are tailored to the recognized state interests. The decision vindicate
s the right of the physician to administer medical treatment according to his pr
ofessional judgment up to the points where important
Page 410 U. S. 166
state interests provide compelling justifications for intervention. Up to those
points, the abortion decision in all its aspects is inherently, and primarily, a
 medical decision, and basic responsibility for it must rest with the physician.
If an individual practitioner abuses the privilege of exercising proper medical
judgment, the usual remedies, judicial and intra-professional, are available.
XII
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Tex
as abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be
struck down separately, for then the State would be left with a statute proscri
bing all abortion procedures no matter how medically urgent the case.
Although the District Court granted appellant Roe declaratory relief, it stopped
short of issuing an injunction against enforcement of the Texas statutes. The C
ourt has recognized that different considerations enter into a federal court's d
ecision as to declaratory relief, on the one hand, and injunctive relief, on the
other. Zwickler v. Koota, 389 U. S. 241, 389 U. S. 252-255 (1967); Dombrowski v
. Pfister, 380 U. S. 479 (1965). We are not dealing with a statute that, on its
face, appears to abridge free expression, an area of particular concern under Do
mbrowski and refined in Younger v. Harris, 401 U.S. at 401 U. S. 50.
We find it unnecessary to decide whether the District Court erred in withholding
injunctive relief, for we assume the Texas prosecutorial authorities will give
full credence to this decision that the present criminal abortion statutes of th
at State are unconstitutional.
The judgment of the District Court as to intervenor Hallford is reversed, and Dr
. Hallford's complaint in intervention is dismissed. In all other respects, the
judgment
Page 410 U. S. 167
of the District Court is affirmed. Costs are allowed to the appellee.
It is so ordered.
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 410 U. S. 207.
]
[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 410 U. S. 209.]
[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 410 U. S. 221.]
[Footnote 1]
"Article 1191. Abortion"
"If any person shall designedly administer to a pregnant woman or knowingly proc
ure to be administered with her consent any drug or medicine, or shall use towar
ds her any violence or means whatever externally or internally applied, and ther
eby procure an abortion, he shall be confined in the penitentiary not less than
two nor more than five years; if it be done without her consent, the punishment
shall be doubled. By 'abortion' is meant that the life of the fetus or embryo sh
all be destroyed in the woman's womb or that a premature birth thereof be caused
."
"Art. 1192. Furnishing the means"
"Whoever furnishes the means for procuring an abortion knowing the purpose inten
ded is guilty as an accomplice."
"Art. 1193. Attempt at abortion"
"If the means used shall fail to produce an abortion, the offender is neverthele
ss guilty of an attempt to produce abortion, provided it be shown that such mean
s were calculated to produce that result, and shall be fined not less than one h
undred nor more than one thousand dollars."
"Art. 1194. Murder in producing abortion"
"If the death of the mother is occasioned by an abortion so produced or by an at
tempt to effect the same it is murder."
"Art. 1196. By medical advice"
"Nothing in this chapter applies to an abortion procured or attempted by medical
advice for the purpose of saving the life of the mother."
The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title 15 o
f the Penal Code. Article 1195, not attacked here, reads:
"Art. 1195. Destroying unborn child"
"Whoever shall during parturition of the mother destroy the vitality or life in
a child in a state of being born and before actual birth, which child would othe
rwise have been born alive, shall be confined in the penitentiary for life or fo
r not less than five years."
[Footnote 2]
Ariz.Rev.Stat.Ann. § 13-211 (1956); Conn.Pub. Act No. 1 (May 1972 special session)
(in 4 Conn.Leg.Serv. 677 (1972)), and Conn.Gen.Stat.Rev. §§ 53-29, 53-30 (1968) (or
unborn child); Idaho Code § 18-601 (1948); Ill.Rev.Stat., c. 38, § 23-1 (1971); Ind
.Code § 35-1-58-1 (1971); Iowa Code § 701.1 (1971); Ky.Rev.Stat. § 436.020 (1962); La.
Rev.Stat. § 37: 1285(6) (1964) (loss of medical license) (but see § 14:87 (Supp. 197
2) containing no exception for the life of the mother under the criminal statute
); Me.Rev.Stat. Ann, Tit. 17, § 51 (1964); Mass.Gen.Laws Ann., c. 272, § 19 (1970) (
using the term "unlawfully," construed to exclude an abortion to save the mother
's life, Kudish v. Bd. of Registration, 356 Mass. 98, 248 N.E.2d 264 (1969)); Mi
ch.Comp.Laws § 750.14 (1948); Minn.Stat. § 617.18 (1971); Mo.Rev.Stat. § 559.100 (1969
); Mont.Rev.Codes Ann. § 94-401 (1969); Neb.Rev.Stat. § 28-405 (1964); Nev.Rev.Stat.
§ 200.220 (1967); N.H.Rev.Stat.Ann. § 585: 13 (1955); N.J.Stat.Ann. § 2A:87-1 (1969)
("without lawful justification"); N.D.Cent.Code §§ 12-25-01, 12-25-02 (1960); Ohio R
ev.Code Ann. § 2901.16 (1953); Okla.Stat.Ann., Tit. 21, § 861 (1972-1973 Supp.); Pa.
Stat.Ann., Tit. 18, §§ 4718, 4719 (1963) ("unlawful"); R.I.Gen.Laws Ann. § 11-3-1 (196
9); S.D.Comp.Laws Ann. § 22-17-1 (1967); Tenn.Code Ann. §§ 39-301, 39-302 (1956); Utah
Code Ann. §§ 76-2-1, 76-2-2 (1953); Vt.Stat.Ann., Tit. 13, § 101 (1958); W.Va.Code An
n. § 61-2-8 (1966); Wis.Stat. § 940.04 (1969); Wyo.Stat.Ann. §§ 6-77, 6-78 (1957).
[Footnote 3]
Long ago, a suggestion was made that the Texas statutes were unconstitutionally
vague because of definitional deficiencies. The Texas Court of Criminal Appeals
disposed of that suggestion peremptorily, saying only,
"It is also insisted in the motion in arrest of judgment that the statute is unc
onstitutional and void in that it does not sufficiently define or describe the o
ffense of abortion. We do not concur in respect to this question."
Jackson v. State, 55 Tex.Cr.R. 79, 89, 115 S.W. 262, 268 (1908). The same court
recently has held again that the State's abortion statutes are not unconstitutio
nally vague or overbroad. Thompson v. State (Ct.Crim.App. Tex.1971), appeal dock
eted, No. 71-1200. The court held that "the State of Texas has a compelling inte
rest to protect fetal life"; that Art. 1191 "is designed to protect fetal life";
that the Texas homicide statutes, particularly Art. 1205 of the Penal Code, are
intended to protect a person "in existence by actual birth," and thereby implic
itly recognize other human life that is not "in existence by actual birth"; that
the definition of human life is for the legislature and not the courts; that Ar
t. 1196 "is more definite than the District of Columbia statute upheld in [ 402
U. S. ] Vuitch" (402 U.S. 62); and that the Texas statute "is not vague and inde
finite or overbroad." A physician's abortion conviction was affirmed.
In Thompson, n. 2, the court observed that any issue as to the burden of proof u
nder the exemption of Art. 1196 "is not before us." But see Veevers v. State, 17
2 Tex.Cr.R. 162, 168-169, 354 S.W.2d 161, 166-167 (1962). Cf. United States v. V
uitch, 402 U. S. 62, 402 U. S. 69-71 (1971).
[Footnote 4]
The name is a pseudonym.
[Footnote 5]
These names are pseudonyms.
[Footnote 6]
The appellee twice states in his brief that the hearing before the District Cour
t was held on July 22, 1970. Brief for Appellee 13. The docket entries,App. 2, a
nd the transcript, App. 76, reveal this to be an error. The July date appears to
be the time of the reporter's transcription. See App. 77.
[Footnote 7]
We need not consider what different result, if any, would follow if Dr. Hallford
's intervention were on behalf of a class. His complaint in intervention does no
t purport to assert a class suit, and makes no reference to any class apart from
an allegation that he "and others similarly situated" must necessarily guess at
the meaning of Art. 1196. His application for leave to intervene goes somewhat
further, for it asserts that plaintiff Roe does not adequately protect the inter
est of the doctor "and the class of people who are physicians . . . [and] the cl
ass of people who are . . . patients. . . ." The leave application, however, is
not the complaint. Despite the District Court's statement to the contrary, 314 F
.Supp. at 1225, we fail to perceive the essentials of a class suit in the Hallfo
rd complaint.
[Footnote 8]
A. Castiglioni, A History of Medicine 84 (2d ed.1947), E. Krumbhaar, translator
and editor (hereinafter Castiglioni).
[Footnote 9]
J. Ricci, The Genealogy of Gynaecology 52, 84, 113, 149 (2d ed.1950) (hereinafte
r Ricci); L. Lader, Abortion 75-77 (1966) (hereinafter Lader), K. Niswander, Med
ical Abortion Practices in the United States, in Abortion and the Law 37, 38-40
(D. Smith ed.1967); G. Williams, The Sanctity of Life and the Criminal Law 148 (
1957) (hereinafter Williams); J. Noonan, An Almost Absolute Value in History, in
The Morality of Abortion 1, 3-7 (J. Noonan ed.1970) (hereinafter Noonan); Quay,
Justifiable Abortion -- Medical and Legal Foundations (pt. 2), 49 Geo.L.J. 395,
40622 (1961) (hereinafter Quay).
[Footnote 10]
L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter Edelstein). But see Ca
stiglioni 227.
[Footnote 11]
Edelstein 12; Ricci 113-114, 118-119; Noonan 5.
[Footnote 12]
Edelstein 13-14
[Footnote 13]
Castiglioni 148.
[Footnote 14]
Id. at 154.
[Footnote 15]
Edelstein 3.
[Footnote 16]
Id. at 12, 15-18.
[Footnote 17]
Id. at 18; Lader 76.
[Footnote 18]
Edelstein 63.
[Footnote 19]
Id. at 64.
[Footnote 20]
Dorand's Illustrated Medical Dictionary 1261 (24th ed.1965).
[Footnote 21]
E. Coke, Institutes III *50; 1 W. Hawkins, Pleas of the Crown, c. 31, § 16 (4th ed
. 1762); 1 W. Blackstone, Commentaries *129-130; M. Hale, Pleas of the Crown 433
(1st Amer. ed. 1847). For discussions of the role of the quickening concept in
English common law, see Lader 78; Noonan 223-226; Means, The Law of New York Con
cerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of
Constitutionality (pt. 1), 14 N.Y.L.F. 411, 418-428 (1968) (hereinafter Means I
); Stern, Abortion: Reform and the Law, 59 J.Crim.L.C. & P.S. 84 (1968) (hereina
fter Stern); Quay 430-432; Williams 152.
[Footnote 22]
Early philosophers believed that the embryo or fetus did not become formed and b
egin to live until at least 40 days after conception for a male and 80 to 90 day
s for a female. See, for example, Aristotle, Hist.Anim. 7.3.583b; Gen.Anim. 2.3.
736, 2.5.741; Hippocrates, Lib. de Nat.Puer., No. 10. Aristotle's thinking deriv
ed from his three-stage theory of life: vegetable, animal, rational. The vegetab
le stage was reached at conception, the animal at "animation," and the rational
soon after live birth. This theory, together with the 40/80 day view, came to be
accepted by early Christian thinkers.
The theological debate was reflected in the writings of St. Augustine, who made
a distinction between embryo inanimatus, not yet endowed with a soul, and embryo
animatus. He may have drawn upon Exodus 21:22. At one point, however, he expres
sed the view that human powers cannot determine the point during fetal developme
nt at which the critical change occurs. See Augustine, De Origine Animae 4.4 (Pu
b.Law 44.527). See also W. Reany, The Creation of the Human Soul, c. 2 and 83-86
(1932); Huser, The Crime of Abortion in Canon Law 15 (Catholic Univ. of America
, Canon Law Studies No. 162, Washington, D.C.1942).
Galen, in three treatises related to embryology, accepted the thinking of Aristo
tle and his followers. Quay 426-427. Later, Augustine on abortion was incorporat
ed by Gratian into the Decretum, published about 1140. Decretum Magistri Gratian
i 2.32.2.7 to 2.32.2.10, in 1 Corpus Juris Canonici 1122, 1123 (A. Friedburg, 2d
ed. 1879). This Decretal and the Decretals that followed were recognized as the
definitive body of canon law until the new Code of 1917.
For discussions of the canon law treatment, see Means I, pp. 411-412; Noonan 20-
26; Quay 426-430; see also J. Noonan, Contraception: A History of Its Treatment
by the Catholic Theologians and Canonists 18-29 (1965).
[Footnote 23]
Bracton took the position that abortion by blow or poison was homicide "if the f
oetus be already formed and animated, and particularly if it be animated." 2 H.
Bracton, De Legibus et Consuetudinibus Angliae 279 (T. Twiss ed. 1879), or, as a
later translation puts it, "if the foetus is already formed or quickened, espec
ially if it is quickened," 2 H. Bracton, On the Laws and Customs of England 341
(S. Thorne ed.1968). See Quay 431; see also 2 Fleta 661 (Book 1, c. 23) (Selden
Society ed.1955).
[Footnote 24]
E. Coke, Institutes III *50.
[Footnote 25]
1 W. Blackstone, Commentaries *129-130.
[Footnote 26]
Means, The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Righ
t About to Arise from the Nineteenth Century Legislative Ashes of a Fourteenth C
entury Common Law Liberty?, 17 N.Y.L.F. 335 (1971) (hereinafter Means II). The a
uthor examines the two principal precedents cited marginally by Coke, both contr
ary to his dictum, and traces the treatment of these and other cases by earlier
commentators. He concludes that Coke, who himself participated as an advocate in
an abortion case in 1601, may have intentionally misstated the law. The author
even suggests a reason: Coke's strong feelings against abortion, coupled with hi
s determination to assert common law (secular) jurisdiction to assess penalties
for an offense that traditionally had been an exclusively ecclesiastical or cano
n law crime. See also Lader 78-79, who notes that some scholars doubt that the c
ommon law ever was applied to abortion; that the English ecclesiastical courts s
eem to have lost interest in the problem after 1527; and that the preamble to th
e English legislation of 1803, 43 Geo. 3, c. 58, § 1, referred to in the text, inf
ra at 410 U. S. 136, states that "no adequate means have been hitherto provided
for the prevention and punishment of such offenses."
[Footnote 27]
Commonwealth v. Bangs, 9 Mass. 387, 388 (1812); Commonwealth v. Parker, 50 Mass.
(9 Metc.) 263, 265-266 (1845); State v. Cooper, 22 N.J.L. 52, 58 (1849); Abrams
v. Foshee, 3 Iowa 274, 278-280 (1856); Smith v. Gaffard, 31 Ala. 45, 51 (1857);
Mitchell v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart v. State, 40 Fla. 527,
532, 25 So. 144, 145 (1898); State v. Alcorn, 7 Idaho 599, 606, 64 P. 1014, 101
6 (1901); Edwards v. State, 79 Neb. 251, 252, 112 N.W. 611, 612 (1907); Gray v.
State, 77 Tex.Cr.R. 221, 224, 178 S.W. 337, 338 (1915); Miller v. Bennett, 190 V
a. 162, 169, 56 S.E.2d 217, 221 (1949). Contra, Mills v. Commonwealth, 13 Pa. 63
1, 633 (1850); State v. Slagle, 83 N.C. 630, 632 (1880).
[Footnote 28]
See Smith v. State, 33 Me. 48, 55 (1851); Evans v. People, 49 N.Y. 86, 88 (1872)
; Lamb v. State, 67 Md. 524, 533, 10 A. 208 (1887).
[Footnote 29]
Conn.Stat., Tit. 20, § 14 (1821).
[Footnote 30]
Conn.Pub. Acts, c. 71, § 1 (1860).
[Footnote 31]
N.Y.Rev.Stat., pt. 4, c. 1, Tit. 2, Art. 1, § 9, p. 661, and Tit. 6, § 21, p. 694 (1
829).
[Footnote 32]
Act of Jan. 20, 1840, § 1, set forth in 2 H. Gammel, Laws of Texas 177-178 (1898);
see Grigsby v. Reib, 105 Tex. 597, 600, 153 S.W. 1124, 1125 (1913).
[Footnote 33]
The early statutes are discussed in Quay 435-438. See also Lader 85-88; Stern 85
-86; and Means II 37376.
[Footnote 34]
Criminal abortion statutes in effect in the States as of 1961, together with his
torical statutory development and important judicial interpretations of the stat
e statutes, are cited and quoted in Quay 447-520. See Comment, A Survey of the P
resent Statutory and Case Law on Abortion: The Contradictions and the Problems,
1972 U.Ill.L.F. 177, 179, classifying the abortion statutes and listing 25 State
s as permitting abortion only if necessary to save or preserve the mother's life
.
[Footnote 35]
Ala.Code, Tit. 14, § 9 (1958); D.C.Code Ann. § 22-201 (1967).
[Footnote 36]
Mass.Gen.Laws Ann., c. 272, § 19 (1970); N.J.Stat.Ann. § 2A: 87-1 (1969); Pa.Stat.An
n., Tit. 18, §§ 4718, 4719 (1963).
[Footnote 37]
Fourteen States have adopted some form of the ALI statute. See Ark.Stat.Ann. §§ 41-3
03 to 41-310 (Supp. 1971); Calif.Health & Safety Code §§ 25950-25955.5 (Supp. 1972);
Colo.Rev.Stat.Ann. §§ 40-2-50 to 40-2-53 (Cum.Supp. 1967); Del.Code Ann., Tit. 24, §§ 1
790-1793 (Supp. 1972); Florida Law of Apr. 13, 1972, c. 72-196, 1972 Fla.Sess.La
w Serv., pp. 380-382; Ga.Code §§ 26-1201 to 26-1203 (1972); Kan.Stat.Ann. § 21-3407 (S
upp. 1971); Md.Ann.Code, Art. 43, §§ 137-139 (1971); Miss.Code Ann. § 2223 (Supp. 1972
); N.M.Stat.Ann. §§ 40A-5-1 to 40A-5-3 (1972); N.C.Gen.Stat. § 14-45.1 (Supp. 1971); O
re.Rev.Stat. §§ 435.405 to 435.495 (1971); S.C.Code Ann. §§ 16-82 to 16-89 (1962 and Sup
p. 1971); Va.Code Ann. §§ 18.1-62 to 18.1-62.3 (Supp. 1972). Mr. Justice Clark descr
ibed some of these States as having "led the way." Religion, Morality, and Abort
ion: A Constitutional Appraisal, 2 Loyola U. (L.A.) L.Rev. 1, 11 (1969).
By the end of 1970, four other States had repealed criminal penalties for aborti
ons performed in early pregnancy by a licensed physician, subject to stated proc
edural and health requirements. Alaska Stat. § 11.15.060 (1970); Haw.Rev.Stat. § 453
-16 (Supp. 1971); N.Y.Penal Code § 125.05, subd. 3 (Supp. 1972-1973); Wash.Rev.Cod
e §§ 9.02.060 to 9.02.080 (Supp. 1972). The precise status of criminal abortion laws
in some States is made unclear by recent decisions in state and federal courts
striking down existing state laws, in whole or in part.
[Footnote 38]
"Whereas, Abortion, like any other medical procedure, should not be performed wh
en contrary to the best interests of the patient since good medical practice req
uires due consideration for the patient's welfare, and not mere acquiescence to
the patient's demand; and"
"Whereas, The standards of sound clinical judgment, which, together with informe
d patient consent, should be determinative according to the merits of each indiv
idual case; therefore be it"
"RESOLVED, That abortion is a medical procedure and should be performed only by
a duly licensed physician and surgeon in an accredited hospital acting only afte
r consultation with two other physicians chosen because of their professional co
mpetency and in conformance with standards of good medical practice and the Medi
cal Practice Act of his State; and be it further"
"RESOLVED, That no physician or other professional personnel shall be compelled
to perform any act which violates his good medical judgment. Neither physician,
hospital, nor hospital personnel shall be required to perform any act violative
of personally held moral principles. In these circumstances, good medical practi
ce requires only that the physician or other professional personnel withdraw fro
m the case so long as the withdrawal is consistent with good medical practice."
Proceedings of the AMA House of Delegates 220 (June 1970).
[Footnote 39]
"The Principles of Medical Ethics of the AMA do not prohibit a physician from pe
rforming an abortion that is performed in accordance with good medical practice
and under circumstances that do not violate the laws of the community in which h
e practices."
"In the matter of abortions, as of any other medical procedure, the Judicial Cou
ncil becomes involved whenever there is alleged violation of the Principles of M
edical Ethics as established by the House of Delegates."
[Footnote 40]
"UNIFORM ABORTION ACT"
"SECTION 1. [Abortion Defined; When Authorized.]"
"(a) 'Abortion' means the termination of human pregnancy with an intention other
than to produce a live birth or to remove a dead fetus."
"(b) An abortion may be performed in this state only if it is performed: "
"(1) by a physician licensed to practice medicine [or osteopathy] in this state
or by a physician practicing medicine [or osteopathy] in the employ of the gover
nment of the United States or of this state, [and the abortion is performed] [in
the physician's office or in a medical clinic, or] in a hospital approved by th
e [Department of Health] or operated by the United States, this state, or any de
partment, agency, [or political subdivision of either;] or by a female upon hers
elf upon the advice of the physician; and"
"(2) within [20] weeks after the commencement of the pregnancy [or after [20] we
eks only if the physician has reasonable cause to believe (i) there is a substan
tial risk that continuance of the pregnancy would endanger the life of the mothe
r or would gravely impair the physical or mental health of the mother, (ii) that
the child would be born with grave physical or mental defect, or (iii) that the
pregnancy resulted from rape or incest, or illicit intercourse with a girl unde
r the age of 16 years]."
"SECTION 2. [Penalty.] Any person who performs or procures an abortion other tha
n authorized by this Act is guilty of a [felony] and, upon conviction thereof, m
ay be sentenced to pay a fine not exceeding [$1,000] or to imprisonment [in the
state penitentiary] not exceeding [5 years], or both."
"SECTION 3. [Uniformity of Interpretation.] This Act shall be construed to effec
tuate its general purpose to make uniform the law with respect to the subject of
this Act among those states which enact it."
"SECTION 4. [Short Title.] This Act may be cited as the Uniform Abortion Act."
"SECTION 5. [Severability.] If any provision of this Act or the application ther
eof to any person or circumstance is held invalid, the invalidity does not affec
t other provisions or applications of this Act which can be given effect without
the invalid provision or application, and to this end the provisions of this Ac
t are severable."
"SECTION 6. [Repeal.] The following acts and parts of acts are repealed: "
"(1)"
"(2)"
"(3)"
"SECTION 7. [Time of Taking Effect.] This Act shall take effect _________."
[Footnote 41]
"This Act is based largely upon the New York abortion act following a review of
the more recent laws on abortion in several states and upon recognition of a mor
e liberal trend in laws on this subject. Recognition was given also to the sever
al decisions in state and federal courts which show a further trend toward liber
alization of abortion laws, especially during the first trimester of pregnancy."
"Recognizing that a number of problems appeared in New York, a shorter time peri
od for 'unlimited' abortions was advisable. The time period was bracketed to per
mit the various states to insert a figure more in keeping with the different con
ditions that might exist among the states. Likewise, the language limiting the p
lace or places in which abortions may be performed was also bracketed to account
for different conditions among the states. In addition, limitations on abortion
s after the initial 'unlimited' period were placed in brackets so that individua
l states may adopt all or any of these reasons, or place further restrictions up
on abortions after the initial period."
"This Act does not contain any provision relating to medical review committees o
r prohibitions against sanctions imposed upon medical personnel refusing to part
icipate in abortions because of religious or other similar reasons, or the like.
Such provisions, while related, do not directly pertain to when, where, or by w
hom abortions may be performed; however, the Act is not drafted to exclude such
a provision by a state wishing to enact the same."
[Footnote 42]
See, for example, YWCA v. Kugler, 342 F.Supp. 1048, 1074 (N.J.1972); Abele v. Ma
rkle, 342 F.Supp. 800, 805-806 (Conn.1972) (Newman, J., concurring in result), a
ppeal docketed, No. 72-56; Walsingham v. State, 250 So.2d 857, 863 (Ervin, J., c
oncurring) (Fla.1971); State v. Gedicke, 43 N.J.L. 86, 90 (1881); Means II 381-3
82.
[Footnote 43]
See C. Haagensen & W. Lloyd, A Hundred Years of Medicine 19 (1943).
[Footnote 44]
Potts, Postconceptive Control of Fertility, 8 Int'l J. of G. & O. 957, 967 (1970
) (England and Wales); Abortion Mortality, 20 Morbidity and Mortality 208, 209 (
June 12, 1971) (U.S. Dept. of HEW, Public Health Service) (New York City); Tietz
e, United States: Therapeutic Abortions, 1963-1968, 59 Studies in Family Plannin
g 5, 7 (1970); Tietze, Mortality with Contraception and Induced Abortion, 45 Stu
dies in Family Planning 6 (1969) (Japan, Czechoslovakia, Hungary); Tietze Lehfel
dt, Legal Abortion in Eastern Europe, 175 J.A.M.A. 1149, 1152 (April 1961). Othe
r sources are discussed in Lader 17-23.
[Footnote 45]
See Brief of Amicus National Right to Life Committee; R. Drinan, The Inviolabili
ty of the Right to Be Born, in Abortion and the Law 107 (D. Smith ed.1967); Loui
sell, Abortion, The Practice of Medicine and the Due Process of Law, 16 U.C.L.A.
L.Rev. 233 (1969); Noonan 1.
[Footnote 46]
See, e.g., Abele v. Markle, 342 F.Supp. 800 (Conn.1972), appeal docketed, No. 72
-56.
[Footnote 47]
See discussions in Means I and Means II.
[Footnote 48]
See, e.g., State v. Murphy, 27 N.J.L. 112, 114 (1858).
[Footnote 49]
Watson v. State, 9 Tex.App. 237, 244-245 (1880); Moore v. State, 37 Tex. Cr.R. 5
52, 561, 40 S.W. 287, 290 (1897); Shaw v. State, 73 Tex.Cr.R. 337, 339, 165 S.W.
930, 931 (1914); Fondren v. State, 74 Tex.Cr.R. 552, 557, 169 S.W. 411, 414 (19
14); Gray v. State, 77 Tex.Cr.R. 221, 229, 178 S.W. 337, 341 (1915). There is no
immunity in Texas for the father who is not married to the mother. Hammett v. S
tate, 84 Tex.Cr.R. 635, 209 S.W. 661 (1919); Thompson v. State (Ct.Crim.App. Tex
.1971), appeal docketed, No. 71-1200.
[Footnote 50]
See Smith v. State, 33 Me. at 55; In re Vince, 2 N.J. 443, 450, 67 A.2d 141, 144
(1949). A short discussion of the modern law on this issue is contained in the
Comment to the ALI's Model Penal Code § 207.11, at 158 and nn. 35-37 (Tent.Draft N
o. 9, 1959).
[Footnote 51]
Tr. of Oral Rearg. 20-21.
[Footnote 52]
Tr. of Oral Rearg. 24.
[Footnote 53]
We are not aware that in the taking of any census under this clause, a fetus has
ever been counted.
[Footnote 54]
When Texas urges that a fetus is entitled to Fourteenth Amendment protection as
a person, it faces a dilemma. Neither in Texas nor in any other State are all ab
ortions prohibited. Despite broad proscription, an exception always exists. The
exception contained in Art. 1196, for an abortion procured or attempted by medic
al advice for the purpose of saving the life of the mother, is typical. But if t
he fetus is a person who is not to be deprived of life without due process of la
w, and if the mother's condition is the sole determinant, does not the Texas exc
eption appear to be out of line with the Amendment's command?
There are other inconsistencies between Fourteenth Amendment status and the typi
cal abortion statute. It has already been pointed out, n 49, supra, that, in Tex
as, the woman is not a principal or an accomplice with respect to an abortion up
on her. If the fetus is a person, why is the woman not a principal or an accompl
ice? Further, the penalty for criminal abortion specified by Art. 1195 is signif
icantly less than the maximum penalty for murder prescribed by Art. 1257 of the
Texas Penal Code. If the fetus is a person, may the penalties be different?
[Footnote 55]
Cf. the Wisconsin abortion statute, defining "unborn child" to mean "a human bei
ng from the time of conception until it is born alive," Wis.Stat. § 940.04(6) (196
9), and the new Connecticut statute, Pub.Act No. 1 (May 1972 special session), d
eclaring it to be the public policy of the State and the legislative intent "to
protect and preserve human life from the moment of conception."
[Footnote 56]
Edelstein 16.
[Footnote 57]
Lader 97-99; D. Feldman, Birth Control in Jewish Law 251-294 (1968). For a stric
ter view, see I. Jakobovits, Jewish Views on Abortion, in Abortion and the Law 1
24 (D. Smith ed.1967).
[Footnote 58]
Amicus Brief for the American Ethical Union et al. For the position of the Natio
nal Council of Churches and of other denominations, see Lader 99-101.
[Footnote 59]
Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed.1971); Dorland's Illust
rated Medical Dictionary 1689 (24th ed.1965).
[Footnote 60]
Hellman & Pritchard, supra, n 59, at 493.
[Footnote 61]
For discussions of the development of the Roman Catholic position, see D. Callah
an, Abortion: Law, Choice, and Morality 409-447 (1970); Noonan 1.
[Footnote 62]
See Brodie, The New Biology and the Prenatal Child, 9 J.Family L. 391, 397 (1970
); Gorney, The New Biology and the Future of Man, 15 U.C.L.A.L.Rev. 273 (1968);
Note, Criminal Law -- Abortion -- The "Morning-After Pill" and Other Pre-Implant
ation Birth-Control Methods and the Law, 46 Ore.L.Rev. 211 (1967); G. Taylor, Th
e Biological Time Bomb 32 (1968); A. Rosenfeld, The Second Genesis 138-139 (1969
); Smith, Through a Test Tube Darkly: Artificial Insemination and the Law, 67 Mi
ch.L.Rev. 127 (1968); Note, Artificial Insemination and the Law, 1968 U.Ill.L.F.
203.
[Footnote 63]
W. Prosser, The Law of Torts 335-338 (4th ed.1971); 2 F. Harper & F. James, The
Law of Torts 1028-1031 (1956); Note, 63 Harv.L.Rev. 173 (1949).
[Footnote 64]
See cases cited in Prosser, supra, n 63, at 336-338; Annotation, Action for Deat
h of Unborn Child, 15 A.L.R.3d 992 (1967).
[Footnote 65]
Prosser, supra, n. 63 at 338; Note, The Law and the Unborn Child: The Legal and
Logical Inconsistencies, 46 Notre Dame Law. 349, 354-360 (1971).
[Footnote 66]
Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16 U.C.
L.A.L.Rev. 233, 235-238 (1969); Note, 56 Iowa L.Rev. 994, 999-1000 (1971); Note,
The Law and the Unborn Child, 46 Notre Dame Law. 349, 351-354 (1971).
[Footnote 67]
Neither in this opinion nor in Doe v. Bolton, post, p. 410 U. S. 179, do we disc
uss the father's rights, if any exist in the constitutional context, in the abor
tion decision. No paternal right has been asserted in either of the cases, and t
he Texas and the Georgia statutes on their face take no cognizance of the father
. We are aware that some statutes recognize the father under certain circumstanc
es. North Carolina, for example, N.C.Gen.Stat. § 14-45.1 (Supp. 1971), requires wr
itten permission for the abortion from the husband when the woman is a married m
inor, that is, when she is less than 18 years of age, 41 N.C.A.G. 489 (1971); if
the woman is an unmarried minor, written permission from the parents is require
d. We need not now decide whether provisions of this kind are constitutional.
MR. JUSTICE STEWART, concurring.
In 1963, this Court, in Ferguson v. Skrupa, 372 U. S. 726, purported to sound th
e death knell for the doctrine of substantive due process, a doctrine under whic
h many state laws had in the past been held to violate the Fourteenth Amendment.
As Mr. Justice Black's opinion for the Court in Skrupa put it:
"We have returned to the original constitutional proposition that courts do not
substitute their social and economic beliefs for the judgment of legislative bod
ies, who are elected to pass laws."
Id. at 372 U. S. 730. [Footnote 2/1]
Barely two years later, in Griswold v. Connecticut, 381 U. S. 479, the Court hel
d a Connecticut birth control law unconstitutional. In view of what had been so
recently said in Skrupa, the Court's opinion in Griswold understandably did its
best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as
the ground for decision. Yet the Connecticut law did not violate any provision o
f the Bill of Rights, nor any other specific provision of the Constitution. [Foo
tnote 2/2] So it was clear
Page 410 U. S. 168
to me then, and it is equally clear to me now, that the Griswold decision can be
rationally understood only as a holding that the Connecticut statute substantiv
ely invaded the "liberty" that is protected by the Due Process Clause of the Fou
rteenth Amendment. [Footnote 2/3] As so understood, Griswold stands as one in a
long line of pre-Skrupa cases decided under the doctrine of substantive due proc
ess, and I now accept it as such.
"In a Constitution for a free people, there can be no doubt that the meaning of
liberty' must be broad indeed." Board of Regents v. Roth, 408 U. S. 564, 408 U.
S. 572. The Constitution nowhere mentions a specific right of personal choice in
matters of marriage and family life, but the "liberty" protected by the Due Pro
cess Clause of the Fourteenth Amendment covers more than those freedoms explicit
ly named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U. S.
232, 353 U. S. 238-239; Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S.
534-535; Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 399-400. Cf. Shapiro v. Tho
mpson, 394 U. S. 618, 394 U. S. 629-630; United States v. Guest, 383 U. S. 745,
383 U. S. 757-758; Carrington v. Rash, 380 U. S. 89, 380 U. S. 96; Aptheker v. S
ecretary of State, 378 U. S. 500, 378 U. S. 505; Kent v. Dulles, 357 U. S. 116,
357 U. S. 127; Bolling v. Sharpe, 347 U. S. 497, 347 U. S. 499-500; Truax v. Rai
ch, 239 U. S. 33, 239 U. S. 41.
Page 410 U. S. 169
As Mr. Justice Harlan once wrote:
"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be
found in or limited by the precise terms of the specific guarantees elsewhere pr
ovided in the Constitution. This 'liberty' is not a series of isolated points pr
icked out in terms of the taking of property; the freedom of speech, press, and
religion; the right to keep and bear arms; the freedom from unreasonable searche
s and seizures; and so on. It is a rational continuum which, broadly speaking, i
ncludes a freedom from all substantial arbitrary impositions and purposeless res
traints . . . and which also recognizes, what a reasonable and sensitive judgmen
t must, that certain interests require particularly careful scrutiny of the stat
e needs asserted to justify their abridgment."
Poe v. Ullman, 367 U. S. 497, 367 U. S. 543 (opinion dissenting from dismissal o
f appeal) (citations omitted). In the words of Mr. Justice Frankfurter,
"Great concepts like . . . 'liberty' . . . were purposely left to gather meaning
from experience. For they relate to the whole domain of social and economic fac
t, and the statesmen who founded this Nation knew too well that only a stagnant
society remains unchanged."
National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U. S. 582, 337 U. S. 646
(dissenting opinion).
Several decisions of this Court make clear that freedom of personal choice in ma
tters of marriage and family life is one of the liberties protected by the Due P
rocess Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U. S. 1, 388
U. S. 12; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; M
eyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U. S. 158, 321 U.
S. 166; Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541. As recently as last
Term, in Eisenstadt v. Baird, 405 U. S. 438, 405 U. S. 453, we recognized
"the right of the individual, married or single, to be free from unwarranted gov
ernmental intrusion into matters so fundamentally affecting a person
Page 410 U. S. 170
as the decision whether to bear or beget a child."
That right necessarily includes the right of a woman to decide whether or not to
terminate her pregnancy.
"Certainly the interests of a woman in giving of her physical and emotional self
during pregnancy and the interests that will be affected throughout her life by
the birth and raising of a child are of a far greater degree of significance an
d personal intimacy than the right to send a child to private school protected i
n Pierce v. Society of Sisters, 268 U. S. 510 (1925), or the right to teach a fo
reign language protected in Meyer v. Nebraska, 262 U. S. 390 (1923)."
Abele v. Markle, 351 F.Supp. 224, 227 (Conn.1972).
Clearly, therefore, the Court today is correct in holding that the right asserte
d by Jane Roe is embraced within the personal liberty protected by the Due Proce
ss Clause of the Fourteenth Amendment.
It is evident that the Texas abortion statute infringes that right directly. Ind
eed, it is difficult to imagine a more complete abridgment of a constitutional f
reedom than that worked by the inflexible criminal statute now in force in Texas
. The question then becomes whether the state interests advanced to justify this
abridgment can survive the "particularly careful scrutiny" that the Fourteenth
Amendment here requires.
The asserted state interests are protection of the health and safety of the preg
nant woman, and protection of the potential future human life within her. These
are legitimate objectives, amply sufficient to permit a State to regulate aborti
ons as it does other surgical procedures, and perhaps sufficient to permit a Sta
te to regulate abortions more stringently, or even to prohibit them in the late
stages of pregnancy. But such legislation is not before us, and I think the Cour
t today has thoroughly demonstrated that these state interests cannot constituti
onally support the broad abridgment of personal
Page 410 U. S. 171
liberty worked by the existing Texas law. Accordingly, I join the Court's opinio
n holding that that law is invalid under the Due Process Clause of the Fourteent
h Amendment.
[Footnote 2/1]
Only Mr. Justice Harlan failed to join the Court's opinion, 372 U.S. at 372 U. S
. 733.
[Footnote 2/2]
There is no constitutional right of privacy, as such.
"[The Fourth] Amendment protects individual privacy against certain kinds of gov
ernmental intrusion, but its protections go further, and often have nothing to d
o with privacy at all. Other provisions of the Constitution protect personal pri
vacy from other forms of governmental invasion. But the protection of a person's
General right to privacy -- his right to be let alone by other people -- is, li
ke the protection of his property and of his very life, left largely to the law
of the individual States."
Katz v. United States, 389 U. S. 347, 389 U. S. 350-351 (footnotes omitted).
[Footnote 2/3]
This was also clear to Mr. Justice Black, 381 U.S. at 381 U. S. 507 (dissenting
opinion); to Mr. Justice Harlan, 381 U.S. at 381 U. S. 499 (opinion concurring i
n the judgment); and to MR. JUSTICE WHITE, 381 U.S. at 381 U. S. 502 (opinion co
ncurring in the judgment). See also Mr. Justice Harlan's thorough and thoughtful
opinion dissenting from dismissal of the appeal in Poe v. Ullman, 367 U. S. 497
, 367 U. S. 522
MR. JUSTICE REHNQUIST, dissenting.
The Court's opinion brings to the decision of this troubling question both exten
sive historical fact and a wealth of legal scholarship. While the opinion thus c
ommands my respect, I find myself nonetheless in fundamental disagreement with t
hose parts of it that invalidate the Texas statute in question, and therefore di
ssent.
I
The Court's opinion decides that a State may impose virtually no restriction on
the performance of abortions during the first trimester of pregnancy. Our previo
us decisions indicate that a necessary predicate for such an opinion is a plaint
iff who was in her first trimester of pregnancy at some time during the pendency
of her lawsuit. While a party may vindicate his own constitutional rights, he m
ay not seek vindication for the rights of others. Moose Lodge v. Irvis, 407 U. S
. 163 (1972); Sierra, Club v. Morton, 405 U. S. 727 (1972). The Court's statemen
t of facts in this case makes clear, however, that the record in no way indicate
s the presence of such a plaintiff. We know only that plaintiff Roe at the time
of filing her complaint was a pregnant woman; for aught that appears in this rec
ord, she may have been in her last trimester of pregnancy as of the date the com
plaint was filed.
Nothing in the Court's opinion indicates that Texas might not constitutionally a
pply its proscription of abortion as written to a woman in that stage of pregnan
cy. Nonetheless, the Court uses her complaint against the Texas statute as a ful
crum for deciding that States may
Page 410 U. S. 172
impose virtually no restrictions on medical abortions performed during the first
trimester of pregnancy. In deciding such a hypothetical lawsuit, the Court depa
rts from the longstanding admonition that it should never "formulate a rule of c
onstitutional law broader than is required by the precise facts to which it is t
o be applied." Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of E
migration, 113 U. S. 33, 113 U. S. 39 (1885). See also Ashwander v. TVA, 297 U.
S. 288, 297 U. S. 345 (1936) (Brandeis, J., concurring).
II
Even if there were a plaintiff in this case capable of litigating the issue whic
h the Court decides, I would reach a conclusion opposite to that reached by the
Court. I have difficulty in concluding, as the Court does, that the right of "pr
ivacy" is involved in this case. Texas, by the statute here challenged, bars the
performance of a medical abortion by a licensed physician on a plaintiff such a
s Roe. A transaction resulting in an operation such as this is not "private" in
the ordinary usage of that word. Nor is the "privacy" that the Court finds here
even a distant relative of the freedom from searches and seizures protected by t
he Fourth Amendment to the Constitution, which the Court has referred to as embo
dying a right to privacy. Katz v. United States, 389 U. S. 347 (1967).
If the Court means by the term "privacy" no more than that the claim of a person
to be free from unwanted state regulation of consensual transactions may be a f
orm of "liberty" protected by the Fourteenth Amendment, there is no doubt that s
imilar claims have been upheld in our earlier decisions on the basis of that lib
erty. I agree with the statement of MR. JUSTICE STEWART in his concurring opinio
n that the "liberty," against deprivation of which without due process the Fourt
eenth
Page 410 U. S. 173
Amendment protects, embraces more than the rights found in the Bill of Rights. B
ut that liberty is not guaranteed absolutely against deprivation, only against d
eprivation without due process of law. The test traditionally applied in the are
a of social and economic legislation is whether or not a law such as that challe
nged has a rational relation to a valid state objective. Williamson v. Lee Optic
al Co., 348 U. S. 483, 348 U. S. 491 (1955). The Due Process Clause of the Fourt
eenth Amendment undoubtedly does place a limit, albeit a broad one, on legislati
ve power to enact laws such as this. If the Texas statute were to prohibit an ab
ortion even where the mother's life is in jeopardy, I have little doubt that suc
h a statute would lack a rational relation to a valid state objective under the
test stated in Williamson, supra. But the Court's sweeping invalidation of any r
estrictions on abortion during the first trimester is impossible to justify unde
r that standard, and the conscious weighing of competing factors that the Court'
s opinion apparently substitutes for the established test is far more appropriat
e to a legislative judgment than to a judicial one.
The Court eschews the history of the Fourteenth Amendment in its reliance on the
"compelling state interest" test. See Weber v. Aetna Casualty & Surety Co., 406
U. S. 164, 406 U. S. 179 (1972) (dissenting opinion). But the Court adds a new
wrinkle to this test by transposing it from the legal considerations associated
with the Equal Protection Clause of the Fourteenth Amendment to this case arisin
g under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehen
d the consequences of this transplanting of the "compelling state interest test,
" the Court's opinion will accomplish the seemingly impossible feat of leaving t
his area of the law more confused than it found it.
Page 410 U. S. 174
While the Court's opinion quotes from the dissent of Mr. Justice Holmes in Lochn
er v. New York, 198 U. S. 45, 198 U. S. 74 (1905), the result it reaches is more
closely attuned to the majority opinion of Mr. Justice Peckham in that case. As
in Lochner and similar cases applying substantive due process standards to econ
omic and social welfare legislation, the adoption of the compelling state intere
st standard will inevitably require this Court to examine the legislative polici
es and pass on the wisdom of these policies in the very process of deciding whet
her a particular state interest put forward may or may not be "compelling." The
decision here to break pregnancy into three distinct terms and to outline the pe
rmissible restrictions the State may impose in each one, for example, partakes m
ore of judicial legislation than it does of a determination of the intent of the
drafters of the Fourteenth Amendment.
The fact that a majority of the States reflecting, after all, the majority senti
ment in those States, have had restrictions on abortions for at least a century
is a strong indication, it seems to me, that the asserted right to an abortion i
s not "so rooted in the traditions and conscience of our people as to be ranked
as fundamental," Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 105 (1934). Ev
en today, when society's views on abortion are changing, the very existence of t
he debate is evidence that the "right" to an abortion is not so universally acce
pted as the appellant would have us believe.
To reach its result, the Court necessarily has had to find within the scope of t
he Fourteenth Amendment a right that was apparently completely unknown to the dr
afters of the Amendment. As early as 1821, the first state law dealing directly
with abortion was enacted by the Connecticut Legislature. Conn.Stat., Tit. 22, §§ 14
, 16. By the time of the adoption of the Fourteenth
Page 410 U. S. 175
Amendment in 1868, there were at least 36 laws enacted by state or territorial l
egislatures limiting abortion. [Footnote 3/1] While many States have amended or
updated
Page 410 U. S. 176
their laws, 21 of the laws on the books in 1868 remain in effect today. [Footnot
e 3/2] Indeed, the Texas statute struck down today was, as the majority notes, f
irst enacted in 1857,
Page 410 U. S. 177
and "has remained substantially unchanged to the present time." Ante at 410 U. S
. 119.
There apparently was no question concerning the validity of this provision or of
any of the other state statutes when the Fourteenth Amendment was adopted. The
only conclusion possible from this history is that the drafters did not intend t
o have the Fourteenth Amendment withdraw from the States the power to legislate
with respect to this matter.
III
Even if one were to agree that the case that the Court decides were here, and th
at the enunciation of the substantive constitutional law in the Court's opinion
were proper, the actual disposition of the case by the Court is still difficult
to justify. The Texas statute is struck down in toto, even though the Court appa
rently concedes that, at later periods of pregnancy Texas might impose these sel
f-same statutory limitations on abortion. My understanding of past practice is t
hat a statute found
Page 410 U. S. 178
to be invalid as applied to a particular plaintiff, but not unconstitutional as
a whole, is not simply "struck down" but is, instead, declared unconstitutional
as applied to the fact situation before the Court. Yick Wo v. Hopkins, 118 U. S.
356 (1886); Street v. New York, 394 U. S. 576 (1969).
For all of the foregoing reasons, I respectfully dissent.
[Footnote 3/1]
Jurisdictions having enacted abortion laws prior to the adoption of the Fourteen
th Amendment in 1868:
1. Alabama -- Ala. Acts, c. 6, § 2 (1840).
2. Arizona -- Howell Code, c. 10, § 45 (1865).
3. Arkansas -- Ark.Rev.Stat., c. 44, div. III, Art. II, § 6 (1838).
4. California -- Cal.Sess.Laws, c. 99, § 45, p. 233 (1849-1850).
5. Colorado (Terr.) -- Colo. Gen.Laws of Terr. of Colo. 1st Sess., § 42, pp 296-29
7 (1861).
6. Connecticut -- Conn.Stat., Tit. 20, §§ 14, 16 (1821). By 1868, this statute had b
een replaced by another abortion law. Conn.Pub. Acts, c. 71, §§ 1, 2, p. 65 (1860).
7. Florida -- Fla.Acts 1st Sess., c. 1637, subc. 3, §§ 10, 11, subc. 8, §§ 9, 10, 11 (18
68), as amended, now Fla.Stat.Ann. §§ 782.09, 782.10, 797.01, 797.02, 782.16 (1965).
8. Georgia Pen.Code, 4th Div., § 20 (1833).
9. Kingdom of Hawaii -- Hawaii Pen.Code, c. 12, §§ 1, 2, 3 (1850).
10. Idaho (Terr.) -- Idaho (Terr.) Laws, Crimes and Punishments §§ 33, 34, 42, pp. 4
41, 443 (1863).
11. Illinois -- Ill.Rev. Criminal Code §§ 40, 41, 46, pp. 130, 131 (1827). By 1868,
this statute had been replaced by a subsequent enactment. Ill.Pub.Laws §§ 1, 2, 3, p
. 89 (1867).
12. Indiana -- Ind.Rev.Stat. §§ 1, 3, p. 224 (1838). By 1868, this statute had been
superseded by a subsequent enactment. Ind.Laws, c. LXXXI, § 2 (1859).
13. Iowa (Terr.) -- Iowa (Terr.) Stat., 1st Legis., 1st Sess., § 18, p. 145 (1838)
. By 1868, this statute had been superseded by a subsequent enactment. Iowa (Ter
r.) Rev.Stat., c. 49, §§ 10, 13 (1843).
14. Kansas (Terr.) -- Kan. (Terr.) Stat., c. 48, §§ 9, 10, 39 (1855). By 1868, this
statute had been superseded by a subsequent enactment. Kan. (Terr.) Laws, c. 28,
§§ 9, 10, 37 (1859).
15. Louisiana -- La.Rev.Stat., Crimes and Offenses § 24, p. 138 (1856).
16. Maine -- Me.Rev.Stat., c. 160, §§ 11, 12, 13, 14 (1840).
17. Maryland -- Md.Laws, c. 179, § 2, p. 315 (1868).
18. Massachusetts -- Mass. Acts & Resolves, c. 27 (1845).
19. Michigan -- Mich.Rev.Stat., c. 153, §§ 32, 33, 34, p. 662 (1846).
20. Minnesota (Terr.) -- Minn. (Terr.) Rev.Stat., c. 100, § 10, 11, p. 493 (1851).
21. Mississippi -- Miss.Code, c. 64, §§ 8, 9, p. 958 (1848).
22. Missouri -- Mo.Rev.Stat., Art. II, §§ 9, 10, 36, pp. 168, 172 (1835).
23. Montana (Terr.) -- Mont. (Terr.) Laws, Criminal Practice Acts § 41, p. 184 (18
64).
24. Nevada (Terr.) -- Nev. (Terr.) Laws, c. 28, § 42, p. 63 (1861).
25. New Hampshire -- N.H.Laws, c. 743, § 1, p. 708 (1848).
26. New Jersey -- N.J.Laws, p. 266 (1849).
27. New York -- N.Y.Rev.Stat., pt. 4, c. 1, Tit 2, §§ 8, 9, pp. 12-13 (1828). By 186
8, this statute had been superseded. N.Y.Laws, c. 260, §§ 1, pp. 285-286 (1845); N.Y
.Laws, c. 22, § 1, p. 19 (1846).
28. Ohio -- Ohio Gen.Stat. §§ 111(1), 112(2), p. 252 (1841).
29. Oregon -- Ore. Gen.Laws, Crim.Code, c. 43, § 509, p. 528 (1845-1864).
30. Pennsylvania -- Pa.Laws No. 374, §§ 87, 88, 89 (1860).
31. Texas -- Tex. Gen.Stat. Dig., c. VII, Arts. 531-536, p. 524 (Oldham & White
1859).
32. Vermont -- Vt. Acts No. 33, § 1 (1846). By 1868, this statute had been amended
. Vt.Acts No. 57, §§ 1, 3 (1867).
33. Virginia -- Va.Acts, Tit. II, c. 3, § 9, p. 96 (1848).
34. Washington (Terr.) -- Wash. (Terr.) Stats., c. II, §§ 37, 38, p. 81 (1854).
35. West Virginia -- See Va. Acts., Tit. II, c. 3, § 9, p. 96 (1848); W.Va.Const.,
Art. XI, par. 8 (1863).
36. Wisconsin -- Wis.Rev.Stat., c. 133, §§ 10, 11 (1849). By 1868, this statute had
been superseded. Wis.Rev.Stat., c. 164, §§ 10, 11; c. 169, §§ 58, 59 (1858).
[Footnote 3/2]
Abortion laws in effect in 1868 and still applicable as of August, 1970:
1. Arizona (1865).
2. Connecticut (1860).
3. Florida (1868).
4. Idaho (1863).
5. Indiana (1838).
6. Iowa (1843)
7. Maine (1840).
8. Massachusetts (1845).
9. Michigan (1846).
10. Minnesota (1851).
11. Missouri (1835).
12. Montana (1864).
13. Nevada (1861).
14. New Hampshire (1848).
15. New Jersey (1849).
16. Ohio (1841).
17. Pennsylvania (1860).
18. Texas (1859).
19. Vermont (1867).
20. West Virginia (1863).
21. Wisconsin (1858).
Bowers v. Hardwick, 478 U.S. 186 (1986)
Bowers v. Hardwick
No. 85-140
Argued March 31, 1986
Decided June 30, 1986
478 U.S. 186
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
Syllabus
After being charged with violating the Georgia statute criminalizing sodomy by c
ommitting that act with another adult male in the bedroom of his home, responden
t Hardwick (respondent) brought suit in Federal District Court, challenging the
constitutionality of the statute insofar as it criminalized consensual sodomy. T
he court granted the defendants' motion to dismiss for failure to state a claim.
The Court of Appeals reversed and remanded, holding that the Georgia statute vi
olated respondent's fundamental rights.
Held: The Georgia statute is constitutional. Pp. 478 U. S. 190-196.
(a) The Constitution does not confer a fundamental right upon homosexuals to eng
age in sodomy. None of the fundamental rights announced in this Court's prior ca
ses involving family relationships, marriage, or procreation bear any resemblanc
e to the right asserted in this case. And any claim that those cases stand for t
he proposition that any kind of private sexual conduct between consenting adults
is constitutionally insulated from state proscription is unsupportable. Pp. 478
U. S. 190-191.
(b) Against a background in which many States have criminalized sodomy and still
do, to claim that a right to engage in such conduct is "deeply rooted in this N
ation's history and tradition" or "implicit in the concept of ordered liberty" i
s, at best, facetious. Pp. 478 U. S. 191-194.
(c) There should be great resistance to expand the reach of the Due Process Clau
ses to cover new fundamental rights. Otherwise, the Judiciary necessarily would
take upon itself further authority to govern the country without constitutional
authority. The claimed right in this case falls far short of overcoming this res
istance. Pp. 478 U. S. 194-195.
(d) The fact that homosexual conduct occurs in the privacy of the home does not
affect the result. Stanley v. Georgia, 394 U. S. 557, distinguished. Pp. 478 U.
S. 195-196.
(e) Sodomy laws should not be invalidated on the asserted basis that majority be
lief that sodomy is immoral is an inadequate rationale to support the laws. P. 4
78 U. S. 196.
760 F.2d 1202, reversed.
Page 478 U. S. 187
WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL
, REHNQUIST, and O'CONNOR, JJ., joined. BURGER, C.J., post, p. 478 U. S. 196, an
d POWELL, J., post, p. 478 U. S. 197, filed concurring opinions. BLACKMUN, J., f
iled a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined,
post, p. 478 U. S. 199. STEVENS, J., filed a dissenting opinion, in which BRENN
AN and MARSHALL, JJ., joined, post, p. 478 U. S. 214.
JUSTICE WHITE delivered the opinion of the Court.
In August, 1982, respondent Hardwick (hereafter respondent) was charged with vio
lating the Georgia statute criminalizing
Page 478 U. S. 188
sodomy [Footnote 1] by committing that act with another adult male in the bedroo
m of respondent's home. After a preliminary hearing, the District Attorney decid
ed not to present the matter to the grand jury unless further evidence developed
.
Respondent then brought suit in the Federal District Court, challenging the cons
titutionality of the statute insofar as it criminalized consensual sodomy. [Foot
note 2] He asserted that he was a practicing homosexual, that the Georgia sodomy
statute, as administered by the defendants, placed him in imminent danger of ar
rest, and that the statute for several reasons violates the Federal Constitution
. The District Court granted the defendants' motion to dismiss for failure to st
ate a claim, relying on Doe v. Commonwealth's Attorney for the City of Richmond,
403 F.Supp. 1199 (ED Va.1975), which this Court summarily affirmed, 425 U.S. 90
1 (1976).
Page 478 U. S. 189
A divided panel of the Court of Appeals for the Eleventh Circuit reversed. 760 F
.2d 1202 (1985). The court first held that, because Doe was distinguishable and,
in any event, had been undermined by later decisions, our summary affirmance in
that case did not require affirmance of the District Court. Relying on our deci
sions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405
U. S. 438 (1972); Stanley v. Georgia, 394 U. S. 557 (1969); and Roe v. Wade, 41
0 U. S. 113 (1973), the court went on to hold that the Georgia statute violated
respondent's fundamental rights because his homosexual activity is a private and
intimate association that is beyond the reach of state regulation by reason of
the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment. The
case was remanded for trial, at which, to prevail, the State would have to prove
that the statute is supported by a compelling interest and is the most narrowly
drawn means of achieving that end.
Because other Courts of Appeals have arrived at judgments contrary to that of th
e Eleventh Circuit in this case, [Footnote 3] we granted the Attorney General's
petition for certiorari questioning the holding that the sodomy statute violates
the fundamental rights of homosexuals. We agree with petitioner that the Court
of Appeals erred, and hence reverse its judgment. [Footnote 4]
Page 478 U. S. 190
This case does not require a judgment on whether laws against sodomy between con
senting adults in general, or between homosexuals in particular, are wise or des
irable. It raises no question about the right or propriety of state legislative
decisions to repeal their laws that criminalize homosexual sodomy, or of state c
ourt decisions invalidating those laws on state constitutional grounds. The issu
e presented is whether the Federal Constitution confers a fundamental right upon
homosexuals to engage in sodomy, and hence invalidates the laws of the many Sta
tes that still make such conduct illegal, and have done so for a very long time.
The case also calls for some judgment about the limits of the Court's role in c
arrying out its constitutional mandate.
We first register our disagreement with the Court of Appeals and with respondent
that the Court's prior cases have construed the Constitution to confer a right
of privacy that extends to homosexual sodomy and, for all intents and purposes,
have decided this case. The reach of this line of cases was sketched in Carey v.
Population Services International, 431 U. S. 678, 431 U. S. 685 (1977). Pierce
v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 39
0 (1923), were described as dealing with childrearing and education; Prince v. M
assachusetts, 321 U. S. 158 (1944), with family relationships; Skinner v. Oklaho
ma ex rel. Williamson, 316 U. S. 535 (1942), with procreation; Loving v. Virgini
a, 388 U. S. 1 (1967), with marriage; Griswold v. Connecticut, supra, and Eisens
tadt v. Baird, supra, with contraception; and Roe v. Wade, 410 U. S. 113 (1973),
with abortion. The latter three cases were interpreted as construing the Due Pr
ocess Clause of the Fourteenth Amendment to confer a fundamental individual righ
t to decide whether or not to beget or bear a child. Carey v. Population Service
s International, supra, at 431 U. S. 688-689.
Accepting the decisions in these cases and the above description of them, we thi
nk it evident that none of the rights announced in those cases bears any resembl
ance to the
Page 478 U. S. 191
claimed constitutional right of homosexuals to engage in acts of sodomy that is
asserted in this case. No connection between family, marriage, or procreation, o
n the one hand, and homosexual activity, on the other, has been demonstrated, ei
ther by the Court of Appeals or by respondent. Moreover, any claim that these ca
ses nevertheless stand for the proposition that any kind of private sexual condu
ct between consenting adults is constitutionally insulated from state proscripti
on is unsupportable. Indeed, the Court's opinion in Carey twice asserted that th
e privacy right, which the Griswold line of cases found to be one of the protect
ions provided by the Due Process Clause, did not reach so far. 431 U.S. at 431 U
. S. 688, n. 5, 431 U. S. 694, n. 17.
Precedent aside, however, respondent would have us announce, as the Court of App
eals did, a fundamental right to engage in homosexual sodomy. This we are quite
unwilling to do. It is true that, despite the language of the Due Process Clause
s of the Fifth and Fourteenth Amendments, which appears to focus only on the pro
cesses by which life, liberty, or property is taken, the cases are legion in whi
ch those Clauses have been interpreted to have substantive content, subsuming ri
ghts that to a great extent are immune from federal or state regulation or prosc
ription. Among such cases are those recognizing rights that have little or no te
xtual support in the constitutional language. Meyer, Prince, and Pierce fall in
this category, as do the privacy cases from Griswold to Carey.
Striving to assure itself and the public that announcing rights not readily iden
tifiable in the Constitution's text involves much more than the imposition of th
e Justices' own choice of values on the States and the Federal Government, the C
ourt has sought to identify the nature of the rights qualifying for heightened j
udicial protection. In Palko v. Connecticut, 302 U. S. 319, 302 U. S. 325, 302 U
. S. 326 (1937), it was said that this category includes those fundamental liber
ties that are "implicit in the concept of ordered liberty," such that "neither
Page 478 U. S. 192
liberty nor justice would exist if [they] were sacrificed." A different descript
ion of fundamental liberties appeared in Moore v. East Cleveland, 431 U. S. 494,
431 U. S. 503 (1977) (opinion of POWELL, J.), where they are characterized as t
hose liberties that are "deeply rooted in this Nation's history and tradition."
Id. at 431 U. S. 503 (POWELL, J.). See also Griswold v. Connecticut, 381 U.S. at
381 U. S. 506.
It is obvious to us that neither of these formulations would extend a fundamenta
l right to homosexuals to engage in acts of consensual sodomy. Proscriptions aga
inst that conduct have ancient roots. See generally Survey on the Constitutional
Right to Privacy in the Context of Homosexual Activity, 40 U.Miami L.Rev. 521,
525 (1986). Sodomy was a criminal offense at common law, and was forbidden by th
e laws of the original 13 States when they ratified the Bill of Rights. [Footnot
e 5] In 1868, when the Fourteenth Amendment was
Page 478 U. S. 193
ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. [Foo
tnote 6] In fact, until 1961, [Footnote 7] all 50 States outlawed sodomy, and to
day, 24 States and the District of Columbia
Page 478 U. S. 194
continue to provide criminal penalties for sodomy performed in private and betwe
en consenting adults. See Survey, U.Miami L.Rev. supra, at 524, n. 9. Against th
is background, to claim that a right to engage in such conduct is "deeply rooted
in this Nation's history and tradition" or "implicit in the concept of ordered
liberty" is, at best, facetious.
Nor are we inclined to take a more expansive view of our authority to discover n
ew fundamental rights imbedded in the Due Process Clause. The Court is most vuln
erable and comes nearest to illegitimacy when it deals with judge-made constitut
ional law having little or no cognizable roots in the language or design of the
Constitution. That this is so was painfully demonstrated by the face-off between
the Executive and the Court in the 1930's, which resulted in the repudiation
Page 478 U. S. 195
of much of the substantive gloss that the Court had placed on the Due Process Cl
auses of the Fifth and Fourteenth Amendments. There should be, therefore, great
resistance to expand the substantive reach of those Clauses, particularly if it
requires redefining the category of rights deemed to be fundamental. Otherwise,
the Judiciary necessarily takes to itself further authority to govern the countr
y without express constitutional authority. The claimed right pressed on us toda
y falls far short of overcoming this resistance.
Respondent, however, asserts that the result should be different where the homos
exual conduct occurs in the privacy of the home. He relies on Stanley v. Georgia
, 394 U. S. 557 (1969), where the Court held that the First Amendment prevents c
onviction for possessing and reading obscene material in the privacy of one's ho
me:
"If the First Amendment means anything, it means that a State has no business te
lling a man, sitting alone in his house, what books he may read or what films he
may watch."
Id. at 394 U. S. 565.
Stanley did protect conduct that would not have been protected outside the home,
and it partially prevented the enforcement of state obscenity laws; but the dec
ision was firmly grounded in the First Amendment. The right pressed upon us here
has no similar support in the text of the Constitution, and it does not qualify
for recognition under the prevailing principles for construing the Fourteenth A
mendment. Its limits are also difficult to discern. Plainly enough, otherwise il
legal conduct is not always immunized whenever it occurs in the home. Victimless
crimes, such as the possession and use of illegal drugs, do not escape the law
where they are committed at home. Stanley itself recognized that its holding off
ered no protection for the possession in the home of drugs, firearms, or stolen
goods. Id. at 394 U. S. 568, n. 11. And if respondent's submission is limited to
the voluntary sexual conduct between consenting adults, it would be difficult,
except by fiat, to limit the claimed right to homosexual conduct
Page 478 U. S. 196
while leaving exposed to prosecution adultery, incest, and other sexual crimes e
ven though they are committed in the home. We are unwilling to start down that r
oad.
Even if the conduct at issue here is not a fundamental right, respondent asserts
that there must be a rational basis for the law, and that there is none in this
case other than the presumed belief of a majority of the electorate in Georgia
that homosexual sodomy is immoral and unacceptable. This is said to be an inadeq
uate rationale to support the law. The law, however, is constantly based on noti
ons of morality, and if all laws representing essentially moral choices are to b
e invalidated under the Due Process Clause, the courts will be very busy indeed.
Even respondent makes no such claim, but insists that majority sentiments about
the morality of homosexuality should be declared inadequate. We do not agree, a
nd are unpersuaded that the sodomy laws of some 25 States should be invalidated
on this basis. [Footnote 8]
Accordingly, the judgment of the Court of Appeals is
Reversed.
[Footnote 1]
Georgia Code Ann. § 16-6-2 (1984) provides, in pertinent part, as follows:
"(a) A person commits the offense of sodomy when he performs or submits to any s
exual act involving the sex organs of one person and the mouth or anus of anothe
r. . . ."
"(b) A person convicted of the offense of sodomy shall be punished by imprisonme
nt for not less than one nor more than 20 years. . . ."
[Footnote 2]
John and Mary Doe were also plaintiffs in the action. They alleged that they wis
hed to engage in sexual activity proscribed by § 16-6-2 in the privacy of their ho
me, App. 3, and that they had been "chilled and deterred" from engaging in such
activity by both the existence of the statute and Hardwick's arrest. Id. at 5. T
he District Court held, however, that, because they had neither sustained, nor w
ere in immediate danger of sustaining, any direct injury from the enforcement of
the statute, they did not have proper standing to maintain the action. Id. at 1
8. The Court of Appeals affirmed the District Court's judgment dismissing the Do
es' claim for lack of standing, 760 F.2d 1202, 1206-1207 (CA11 1985), and the Do
es do not challenge that holding in this Court.
The only claim properly before the Court, therefore, is Hardwick's challenge to
the Georgia statute as applied to consensual homosexual sodomy. We express no op
inion on the constitutionality of the Georgia statute as applied to other acts o
f sodomy.
[Footnote 3]
See Baker v. Wade, 769 F.2d 289, rehearing denied, 774 F.2d 1285 (CA5 1985) (en
banc); Dronenburg v. Zech, 239 U.S.App.D.C. 229, 741 F.2d 1388, rehearing denied
, 241 U.S.App.D.C. 262, 746 F.2d 1579 (1984).
[Footnote 4]
Petitioner also submits that the Court of Appeals erred in holding that the Dist
rict Court was not obligated to follow our summary affirmance in Doe. We need no
t resolve this dispute, for we prefer to give plenary consideration to the merit
s of this case rather than rely on our earlier action in Doe. See Usery v. Turne
r Elkhorn Mining Co., 428 U. S. 1, 428 U. S. 14 (1976); Massachusetts Board of R
etirement v. Murgia, 427 U. S. 307, 427 U. S. 309, n. 1 (1976); Edelman v. Jorda
n, 415 U. S. 651, 415 U. S. 671 (1974). Cf. Hicks v. Miranda, 422 U. S. 332, 422
U. S. 344 (1975).
[Footnote 5]
Criminal sodomy laws in effect in 1791:
Connecticut: 1 Public Statute Laws of the State of Connecticut, 1808, Title LXVI
, ch. 1, § 2 (rev. 1672).
Delaware: 1 Laws of the State of Delaware, 1797, ch. 22, § 5 (passed 1719).
Georgia had no criminal sodomy statute until 1816, but sodomy was a crime at com
mon law, and the General Assembly adopted the common law of England as the law o
f Georgia in 1784. The First Laws of the State of Georgia, pt. 1, p. 290 (1981).
Maryland had no criminal sodomy statute in 1791. Maryland's Declaration of Right
s, passed in 1776, however, stated that "the inhabitants of Maryland are entitle
d to the common law of England," and sodomy was a crime at common law. 4 W. Swin
dler, Sources and Documents of United States Constitutions 372 (1975).
Massachusetts: Acts and Laws passed by the General Court of Massachusetts, ch. 1
4, Act of Mar. 3, 1785.
New Hampshire passed its first sodomy statute in 1718. Acts and Laws of New Hamp
shire 1680-1726, p. 141 (1978).
Sodomy was a crime at common law in New Jersey at the time of the ratification o
f the Bill of Rights. The State enacted its first criminal sodomy law five years
later. Acts of the Twentieth General Assembly, Mar. 18, 1796, ch. DC, § 7.
New York: Laws of New York, ch. 21 (passed 1787)
At the time of ratification of the Bill of Rights, North Carolina had adopted th
e English statute of Henry VIII outlawing sodomy. See Collection of the Statutes
of the Parliament of England in Force in the State of North Carolina, ch. 17, p
. 314 (Martin ed. 1792).
Pennsylvania: Laws of the Fourteenth General Assembly of the Commonwealth of Pen
nsylvania, ch. CLIV, § 2 (passed 1790).
Rhode Island passed its first sodomy law in 1662. The Earliest Acts and Laws of
the Colony of Rhode Island and Providence Plantations 1647-1719, p. 142 (1977).
South Carolina: Public Laws of the State of South Carolina, p. 49 (1790). At the
time of the ratification of the Bill of Rights, Virginia had no specific statut
e outlawing sodomy, but had adopted the English common law. 9 Hening's Laws of V
irginia, ch. 5, § 6, p. 127 (1821) (passed 1776).
[Footnote 6]
Criminal sodomy statutes in effect in 1868:
Alabama: Ala.Rev.Code § 3604 (1867).
Arizona (Terr.): Howell Code, ch. 10, § 48 (1865).
Arkansas: Ark.Stat., ch. 51, Art. IV, § 5 (1858).
California: 1 Cal.Gen.Laws, ? 1450, § 48 (1865).
Colorado (Terr.): Colo.Rev.Stat., ch. 22, §§ 45, 46 (1868).
Connecticut: Conn.Gen.Stat., Tit. 122, ch. 7, § 124 (1866).
Delaware: Del.Rev.Stat., ch. 131, § 7 (1893).
Florida: Fla.Rev.Stat., div. 5, § 2614 (passed 1868) (1892).
Georgia: Ga.Code §§ 4286, 4287, 4290 (1867).
Kingdom of Hawaii: Haw.Penal Code, ch. 13, § 11 (1869).
Illinois: Ill.Rev.Stat., div. 5, §§ 49, 50 (1845).
Kansas (Terr.): Kan.Stat., ch. 53, § 7 (1855).
Kentucky: 1 Ky.Rev.Stat., ch. 28, Art. IV, § 11 (1860).
Louisiana: La.Rev.Stat., Crimes and Offences, § 5 (1856).
Maine: Me.Rev.Stat., Tit. XII, ch. 160, § 4 (1840).
Maryland: 1 Md. Code, Art. 30, § 201 (1860).
Massachusetts: Mass. Gen.Stat., ch. 165, § 18 (1860).
Michigan: Mich. Rev.Stat., Tit. 30, ch. 158, § 16 (1846).
Minnesota: Minn.Stat., ch. 96, § 13 (1859).
Mississippi: Miss. Rev. Code, ch. 64, § LII, Art. 238 (1857).
Missouri: 1 Mo.Rev.Stat., ch. 50, Art. VIII, § 7 (1856).
Montana (Terr.): Mont. Acts, Resolutions, Memorials, Criminal Practice Acts, ch.
IV, § 44 (1866).
Nebraska (Terr.): Neb.Rev.Stat., Crim.Code, ch. 4, § 47 (1866).
Nevada (Terr.): Nev.Comp.Laws, 1861-1900, Crimes and Punishments, § 45.
New Hampshire: N.H.Laws, Act. of June 19, 1812, § 5 (1815).
New Jersey: N.J.Rev.Stat., Tit. 8, ch. 1 § 9 (1847).
New York: 3 N.Y.Rev.Stat., pt. 4. ch. 1, Tit. 5, § 20 (5th ed. 1859).
North Carolina: N.C.Rev.Code, ch. 34, § 6 (1855).
Oregon: Laws of Ore., Crimes Against Morality, etc., ch. 7, § 655 (1874).
Pennsylvania: Act of Mar. 31, 1860, § 32, Pub.L. 392, in 1 Digest of Statute Law o
f Pa. 1700-1903, p. 1011 (Purdon 1905).
Rhode Island: R.I.Gen.Stat., ch. 232, § 12 (1872).
South Carolina: Act of 1712, in 2 Stat. at Large of S.C. 1682-1716, p. 493 (1837
).
Tennessee: Tenn.Code, ch. 8, Art. 1, § 4843 (1858).
Texas: Tex.Rev.Stat., Tit. 10, ch. 5, Art. 342 (1887) (passed 1860).
Vermont: Acts and Laws of the State of Vt. (1779).
Virginia: Va.Code, ch. 149, § 12 (1868).
West Virginia: W.Va.Code, ch. 149, § 12 (1868).
Wisconsin (Terr.): Wis.Stat. § 14, p. 367 (1839).
[Footnote 7]
In 1961, Illinois adopted the American Law Institute's Model Penal Code, which d
ecriminalized adult, consensual, private, sexual conduct. Criminal Code of 1961,
§§ 11-2, 11-3, 1961 Ill.Laws, pp.1985, 2006 (codified as amended at Ill.Rev.Stat.,
ch. 38, ?? 11-2, 11-3 (1983) (repealed 1984)). See American Law Institute, Model
Penal Code § 213.2 (Proposed Official Draft 1962).
[Footnote 8]
Respondent does not defend the judgment below based on the Ninth Amendment, the
Equal Protection Clause, or the Eighth Amendment.
CHIEF JUSTICE BURGER, concurring.
I join the Court's opinion, but I write separately to underscore my view that, i
n constitutional terms, there is no such thing as a fundamental right to commit
homosexual sodomy.
As the Court notes, ante at 478 U. S. 192, the proscriptions against sodomy have
very "ancient roots." Decisions of individuals relating to homosexual conduct h
ave been subject to state intervention throughout the history of Western civiliz
ation. Condemnation of those practices is firmly rooted in Judeo-Christian moral
and ethical standards. Homosexual sodomy was a capital crime under Roman law. S
ee Code Theod. 9.7.6; Code Just. 9.9.31. See also D. Bailey, Homosexuality
Page 478 U. S. 197
and the Western Christian Tradition 70-81 (1975). During the English Reformation
, when powers of the ecclesiastical courts were transferred to the King's Courts
, the first English statute criminalizing sodomy was passed. 25 Hen. VIII, ch. 6
. Blackstone described "the infamous crime against nature" as an offense of "dee
per malignity" than rape, a heinous act "the very mention of which is a disgrace
to human nature," and "a crime not fit to be named." 4 W. Blackstone, Commentar
ies *215. The common law of England, including its prohibition of sodomy, became
the received law of Georgia and the other Colonies. In 1816, the Georgia Legisl
ature passed the statute at issue here, and that statute has been continuously i
n force in one form or another since that time. To hold that the act of homosexu
al sodomy is somehow protected as a fundamental right would be to cast aside mil
lennia of moral teaching.
This is essentially not a question of personal "preferences," but rather of the
legislative authority of the State. I find nothing in the Constitution depriving
a State of the power to enact the statute challenged here.
JUSTICE POWELL, concurring.
I join the opinion of the Court. I agree with the Court that there is no fundame
ntal right -- i.e., no substantive right under the Due Process Clause -- such as
that claimed by respondent Hardwick, and found to exist by the Court of Appeals
. This is not to suggest, however, that respondent may not be protected by the E
ighth Amendment of the Constitution. The Georgia statute at issue in this case,
Ga.Code Ann. § 16-6-2 (1984), authorizes a court to imprison a person for up to 20
years for a single private, consensual act of sodomy. In my view, a prison sent
ence for such conduct -- certainly a sentence of long duration -- would create a
serious Eighth Amendment issue. Under the Georgia statute, a single act of sodo
my, even in the private setting of a home, is a
Page 478 U. S. 198
felony comparable in terms of the possible sentence imposed to serious felonies
such as aggravated battery, § 16-5-24, first-degree arson, § 16-7-60, and robbery, § 1
6-8-40. [Footnote 2/1]
In this case, however, respondent has not been tried, much less convicted and se
ntenced. [Footnote 2/2] Moreover, respondent has not raised the Eighth Amendment
issue below. For these reasons this constitutional argument is not before us.
Page 478 U. S. 199
[Footnote 2/1]
Among those States that continue to make sodomy a crime, Georgia authorizes one
of the longest possible sentences. See Ala.Code § 13A6-65(a)(3) (1982) (1-year max
imum); Ariz.Rev.Stat.Ann. §§ 13-1411, 13-1412 (West Supp.1985) (30 days); Ark.Stat.A
nn. § 41-1813 (1977) (1-year maximum); D.C.Code § 22-3502 (1981) (10-year maximum);
Fla.Stat. § 800.02 (1985) (60-day maximum); Ga.Code Ann. § 16-6-2 (1984) (1 to 20 ye
ars); Idaho Code § 18-6605 (1979) (5-year minimum); Kan.Stat.Ann. § 21-3505 (Supp.19
85) (6-month maximum); Ky.Rev.Stat. § 510.100 (1985) (90 days to 12 months); La.Re
v.Stat.Ann. § 14:89 (West 1986) (5-year maximum); Md.Ann.Code, Art. 27, §§ 553-554 (19
82) (10-year maximum); Mich.Comp.Laws § 750.158 (1968) (15-year maximum); Minn.Sta
t. § 609.293 (1984) (1-year maximum); Miss.Code Ann. § 97-29-59 (1973) (10-year maxi
mum); Mo.Rev.Stat. § 566.090 (Supp.1984) (1-year maximum); Mont.Code Ann. § 45-5-505
(1985) (10-year maximum); Nev.Rev.Stat. § 201.190 (1985) (6-year maximum); N.C.Ge
n.Stat. § 14-177 (1981) (10-year maximum); Okla.Stat., Tit. 21, § 886 (1981) (10-yea
r maximum); R.I.Gen.Laws § 11-10-1 (1981) (7 to 20 years); S.C.Code § 16-15-120 (198
5) (5-year maximum); Tenn.Code Ann. § 39-2-612 (1982) (5 to 15 years); Tex.Penal C
ode Ann. § 21.06 (1974) ($200 maximum fine); Utah Code Ann. § 76-5-403 (1978) (6-mon
th maximum); Va.Code § 18.2-361 (1982) (5-year maximum).
[Footnote 2/2]
It was conceded at oral argument that, prior to the complaint against respondent
Hardwick, there had been no reported decision involving prosecution for private
homosexual sodomy under this statute for several decades. See Thompson v. Aldre
dge, 187 Ga. 467, 200 S.E. 799 (1939). Moreover, the State has declined to prese
nt the criminal charge against Hardwick to a grand jury, and this is a suit for
declaratory judgment brought by respondents challenging the validity of the stat
ute. The history of nonenforcement suggests the moribund character today of laws
criminalizing this type of private, consensual conduct. Some 26 States have rep
ealed similar statutes. But the constitutional validity of the Georgia statute w
as put in issue by respondents, and for the reasons stated by the Court, I canno
t say that conduct condemned for hundreds of years has now become a fundamental
right.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVE
NS join, dissenting.
This case is no more about "a fundamental right to engage in homosexual sodomy,"
as the Court purports to declare, ante at 478 U. S. 191, than Stanley v. Georgi
a, 394 U. S. 557 (1969), was about a fundamental right to watch obscene movies,
or Katz v. United States, 389 U. S. 347 (1967), was about a fundamental right to
place interstate bets from a telephone booth. Rather, this case is about "the m
ost comprehensive of rights and the right most valued by civilized men," namely,
"the right to be let alone." Olmstead v. United States, 277 U. S. 438, 277 U. S
. 478 (1928) (Brandeis, J., dissenting).
The statute at issue, Ga.Code Ann. § 16-6-2 (1984), denies individuals the right t
o decide for themselves whether to engage in particular forms of private, consen
sual sexual activity. The Court concludes that § 16-6-2 is valid essentially becau
se "the laws of . . . many States . . . still make such conduct illegal and have
done so for a very long time." Ante at 478 U. S. 190. But the fact that the mor
al judgments expressed by statutes like § 16-6-2 may be
"'natural and familiar . . . ought not to conclude our judgment upon the questio
n whether statutes embodying them conflict with the Constitution of the United S
tates.'"
Roe v. Wade, 410 U. S. 113, 410 U. S. 117 (1973), quoting Lochner v. New York, 1
98 U. S. 45, 198 U. S. 76 (1905) (Holmes, J., dissenting). Like Justice Holmes,
I believe that
"[i]t is revolting to have no better reason for a rule of law than that so it wa
s laid down in the time of Henry IV. It is still more revolting if the grounds u
pon which it was laid down have vanished long since, and the rule simply persist
s from blind imitation of the past."
Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897). I believe we must a
nalyze respondent Hardwick's claim in the light of the values that underlie the
constitutional right to privacy. If that right means anything, it means that, be
fore Georgia can prosecute its citizens for making choices about the most intima
te
Page 478 U. S. 200
aspects of their lives, it must do more than assert that the choice they have ma
de is an "abominable crime not fit to be named among Christians.'" Herring v. St
ate, 119 Ga. 709, 721, 46 S.E. 876, 882 (1904).
I
In its haste to reverse the Court of Appeals and hold that the Constitution does
not "confe[r] a fundamental right upon homosexuals to engage in sodomy," ante a
t 478 U. S. 190, the Court relegates the actual statute being challenged to a fo
otnote, and ignores the procedural posture of the case before it. A fair reading
of the statute and of the complaint clearly reveals that the majority has disto
rted the question this case presents.
First, the Court's almost obsessive focus on homosexual activity is particularly
hard to justify in light of the broad language Georgia has used. Unlike the Cou
rt, the Georgia Legislature has not proceeded on the assumption that homosexuals
are so different from other citizens that their lives may be controlled in a wa
y that would not be tolerated if it limited the choices of those other citizens.
Cf. ante at 478 U. S. 188, n. 2. Rather, Georgia has provided that
"[a] person commits the offense of sodomy when he performs or submits to any sex
ual act involving the sex organs of one person and the mouth or anus of another.
"
Ga.Code Ann. § 16-6-2(a) (1984). The sex or status of the persons who engage in th
e act is irrelevant as a matter of state law. In fact, to the extent I can disce
rn a legislative purpose for Georgia's 1968 enactment of § 16-6-2, that purpose se
ems to have been to broaden the coverage of the law to reach heterosexual as wel
l as homosexual activity. [Footnote 3/1] I therefore see no basis for the
Page 478 U. S. 201
Court's decision to treat this case as an "as applied" challenge to § 16-6-2, see
ante at 478 U. S. 188, n. 2, or for Georgia's attempt, both in its brief and at
oral argument, to defend § 16-6-2 solely on the grounds that it prohibits homosexu
al activity. Michael Hardwick's standing may rest in significant part on Georgia
's apparent willingness to enforce against homosexuals a law it seems not to hav
e any desire to enforce against heterosexuals. See Tr. of Oral Arg. 4-5; cf. 760
F.2d 1202, 1205-1206 (CA11 1985). But his claim that § 16-6-2 involves an unconst
itutional intrusion into his privacy and his right of intimate association does
not depend in any way on his sexual orientation.
Second, I disagree with the Court's refusal to consider whether § 16-6-2 runs afou
l of the Eighth or Ninth Amendments or the Equal Protection Clause of the Fourte
enth Amendment. Ante at 478 U. S. 196, n. 8. Respondent's complaint expressly in
voked the Ninth Amendment, see App. 6, and he relied heavily before this Court o
n Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 484 (1965), which identifies
that Amendment as one of the specific constitutional provisions giving "life an
d substance" to our understanding of privacy. See Brief for Respondent Hardwick
10-12; Tr. of Oral Arg. 33. More importantly, the procedural posture of the case
requires that we affirm the Court of Appeals' judgment if there is any ground o
n which respondent may be entitled to relief. This case is before us on petition
er's motion to dismiss for failure to state a claim, Fed.Rule Civ.Proc. 12(b)(6)
. See App. 17. It is a well-settled principle of law that
"a complaint should not be dismissed merely because a plaintiff's allegations do
not support the particular legal theory he advances, for the court is under a d
uty to examine the complaint to determine if the allegations provide for relief
on any possible theory.
Page 478 U. S. 202
Bramlet v. Wilson, 495 F.2d 714, 716 (CA8 1974); see Parr v. Great Lakes Express
Co., 484 F.2d 767, 773 (CA7 1973); Due v. Tallahassee Theatres, Inc., 333 F.2d
630, 631 (CA5 1964); United States v. Howell, 318 F.2d 162, 166 (CA9 1963); 5 C.
Wright & A. Miller, Federal Practice and Procedure § 1357, pp. 601-602 (1969); se
e also Conley v. Gibson, 355 U. S. 41, 355 U. S. 45-46 (1957). Thus, even if res
pondent did not advance claims based on the Eighth or Ninth Amendments, or on th
e Equal Protection Clause, his complaint should not be dismissed if any of those
provisions could entitle him to relief. I need not reach either the Eighth Amen
dment or the Equal Protection Clause issues, because I believe that Hardwick has
stated a cognizable claim that § 16-6-2 interferes with constitutionally protecte
d interests in privacy and freedom of intimate association. But neither the Eigh
th Amendment nor the Equal Protection Clause is so clearly irrelevant that a cla
im resting on either provision should be peremptorily dismissed. [Footnote 3/2]
The Court's cramped reading of the
Page 478 U. S. 203
issue before it makes for a short opinion, but it does little to make for a pers
uasive one."
II
"Our cases long have recognized that the Constitution embodies a promise that a
certain private sphere of individual liberty will be kept largely beyond the rea
ch of government."
Thornburgh v. American College of Obstetricians & Gynecologists, 476 U. S. 747,
476 U. S. 772 (1986). In construing the right to privacy, the Court has proceede
d along two somewhat distinct,
Page 478 U. S. 204
albeit complementary, lines. First, it has recognized a privacy interest with re
ference to certain decisions that are properly for the individual to make. E.g.,
Roe v. Wade, 410 U. S. 113 (1973); Pierce v. Society of Sisters, 268 U. S. 510
(1925). Second, it has recognized a privacy interest with reference to certain p
laces without regard for the particular activities in which the individuals who
occupy them are engaged. E.g., United States v. Karo, 468 U. S. 705 (1984); Payt
on v. New York, 445 U. S. 573 (1980); Rios v. United States, 364 U. S. 253 (1960
). The case before us implicates both the decisional and the spatial aspects of
the right to privacy.
A
The Court concludes today that none of our prior cases dealing with various deci
sions that individuals are entitled to make free of governmental interference "b
ears any resemblance to the claimed constitutional right of homosexuals to engag
e in acts of sodomy that is asserted in this case." Ante at 478 U. S. 190-191. W
hile it is true that these cases may be characterized by their connection to pro
tection of the family, see Roberts v. United States Jaycees, 468 U. S. 609, 468
U. S. 619 (1984), the Court's conclusion that they extend no further than this b
oundary ignores the warning in Moore v. East Cleveland, 431 U. S. 494, 431 U. S.
501 (1977) (plurality opinion), against
"clos[ing] our eyes to the basic reasons why certain rights associated with the
family have been accorded shelter under the Fourteenth Amendment's Due Process C
lause."
We protect those rights not because they contribute, in some direct and material
way, to the general public welfare, but because they form so central a part of
an individual's life. "[T]he concept of privacy embodies the moral fact that a p
erson belongs to himself, and not others nor to society as a whole.'" Thornburgh
v. American College of Obstetricians & Gynecologists, 476 U.S. at 476 U. S. 777
, n. 5 (STEVENS, J., concurring), quoting Fried, Correspondence, 6 Phil. & Pub.A
ffairs 288-289 (1977). And so we protect the decision whether to
Page 478 U. S. 205
marry precisely because marriage
"is an association that promotes a way of life, not causes; a harmony in living,
not political faiths; a bilateral loyalty, not commercial or social projects."
Griswold v. Connecticut, 381 U.S. at 381 U. S. 486. We protect the decision whet
her to have a child because parenthood alters so dramatically an individual's se
lf-definition, not because of demographic considerations or the Bible's command
to be fruitful and multiply. Cf. Thornburgh v. American College of Obstetricians
& Gynecologists, supra, at 476 U. S. 777, n. 6 (STEVENS, J., concurring). And w
e protect the family because it contributes so powerfully to the happiness of in
dividuals, not because of a preference for stereotypical households. Cf. Moore v
. East Cleveland, 431 U.S. at 431 U. S. 500-506 (plurality opinion). The Court r
ecognized in Roberts, 468 U.S. at 468 U. S. 619, that the "ability independently
to define one's identity that is central to any concept of liberty" cannot trul
y be exercised in a vacuum; we all depend on the "emotional enrichment from clos
e ties with others." Ibid.
Only the most willful blindness could obscure the fact that sexual intimacy is "
a sensitive, key relationship of human existence, central to family life, commun
ity welfare, and the development of human personality," Paris Adult Theatre I v.
Slaton, 413 U. S. 49, 413 U. S. 63 (1973); see also Carey v. Population Service
s International, 431 U. S. 678, 431 U. S. 685 (1977). The fact that individuals
define themselves in a significant way through their intimate sexual relationshi
ps with others suggests, in a Nation as diverse as ours, that there may be many
"right" ways of conducting those relationships, and that much of the richness of
a relationship will come from the freedom an individual has to choose the form
and nature of these intensely personal bonds. See Karst, The Freedom of Intimate
Association, 89 Yale L.J. 624, 637 (1980); cf. Eisenstadt v. Baird, 405 U. S. 4
38, 405 U. S. 453 (1972); Roe v. Wade, 410 U.S. at 410 U. S. 153.
In a variety of circumstances, we have recognized that a necessary corollary of
giving individuals freedom to choose
Page 478 U. S. 206
how to conduct their lives is acceptance of the fact that different individuals
will make different choices. For example, in holding that the clearly important
state interest in public education should give way to a competing claim by the A
mish to the effect that extended formal schooling threatened their way of life,
the Court declared:
"There can be no assumption that today's majority is 'right' and the Amish and o
thers like them are 'wrong.' A way of life that is odd or even erratic, but inte
rferes with no rights or interests of others, is not to be condemned because it
is different."
Wisconsin v. Yoder, 406 U. S. 205, 406 U. S. 223-224 (1972). The Court claims th
at its decision today merely refuses to recognize a fundamental right to engage
in homosexual sodomy; what the Court really has refused to recognize is the fund
amental interest all individuals have in controlling the nature of their intimat
e associations with others.
B
The behavior for which Hardwick faces prosecution occurred in his own home, a pl
ace to which the Fourth Amendment attaches special significance. The Court's tre
atment of this aspect of the case is symptomatic of its overall refusal to consi
der the broad principles that have informed our treatment of privacy in specific
cases. Just as the right to privacy is more than the mere aggregation of a numb
er of entitlements to engage in specific behavior, so too protecting the physica
l integrity of the home is more than merely a means of protecting specific activ
ities that often take place there. Even when our understanding of the contours o
f the right to privacy depends on "reference to a place,'" Katz v. United States
, 389 U.S. at 389 U. S. 361 (Harlan, J., concurring),
"the essence of a Fourth Amendment violation is 'not the breaking of [a person's
] doors, and the rummaging of his drawers,' but rather is 'the invasion of his i
ndefeasible right of personal security, personal liberty and private property.'"
California v. Ciraolo, 476 U. S. 207, 476 U. S. 226 (1986) (POWELL, J., dissenti
ng),
Page 478 U. S. 207
quoting Boyd v. United States, 116 U. S. 616, 116 U. S. 630 (1886).
The Court's interpretation of the pivotal case of Stanley v. Georgia, 394 U. S.
557 (1969), is entirely unconvincing. Stanley held that Georgia's undoubted powe
r to punish the public distribution of constitutionally unprotected, obscene mat
erial did not permit the State to punish the private possession of such material
. According to the majority here, Stanley relied entirely on the First Amendment
, and thus, it is claimed, sheds no light on cases not involving printed materia
ls. Ante at 478 U. S. 195. But that is not what Stanley said. Rather, the Stanle
y Court anchored its holding in the Fourth Amendment's special protection for th
e individual in his home:
"'The makers of our Constitution undertook to secure conditions favorable to the
pursuit of happiness. They recognized the significance of man's spiritual natur
e, of his feelings and of his intellect. They knew that only a part of the pain,
pleasure and satisfactions of life are to be found in material things. They sou
ght to protect Americans in their beliefs, their thoughts, their emotions and th
eir sensations.'"
"* * * *"
"These are the rights that appellant is asserting in the case before us. He is a
sserting the right to read or observe what he pleases -- the right to satisfy hi
s intellectual and emotional needs in the privacy of his own home."
394 U.S. at 394 U. S. 564-565, quoting Olmstead v. United States, 277 U.S. at 27
7 U. S. 478 (Brandeis, J., dissenting).
The central place that Stanley gives Justice Brandeis' dissent in Olmstead, a ca
se raising no First Amendment claim, shows that Stanley rested as much on the Co
urt's understanding of the Fourth Amendment as it did on the First. Indeed, in P
aris Adult Theatre I v. Slaton, 413 U. S. 49 (1973), the Court suggested that re
liance on the Fourth
Page 478 U. S. 208
Amendment not only supported the Court's outcome in Stanley but actually was nec
essary to it:
"If obscene material unprotected by the First Amendment, in itself, carried with
it a 'penumbra' of constitutionally protected privacy, this Court would not hav
e found it necessary to decide Stanley on the narrow basis of the 'privacy of th
e home,' which was hardly more than a reaffirmation that 'a man's home is his ca
stle.'"
413 U.S. at 413 U. S. 66. "The right of the people to be secure in their . . . h
ouses," expressly guaranteed by the Fourth Amendment, is perhaps the most "textu
al" of the various constitutional provisions that inform our understanding of th
e right to privacy, and thus I cannot agree with the Court's statement that "[t]
he right pressed upon us here has no . . . support in the text of the Constituti
on," ante at 478 U. S. 195. Indeed, the right of an individual to conduct intima
te relationships in the intimacy of his or her own home seems to me to be the he
art of the Constitution's protection of privacy.
III
The Court's failure to comprehend the magnitude of the liberty interests at stak
e in this case leads it to slight the question whether petitioner, on behalf of
the State, has justified Georgia's infringement on these interests. I believe th
at neither of the two general justifications for § 16-6-2 that petitioner has adva
nced warrants dismissing respondent's challenge for failure to state a claim.
First, petitioner asserts that the acts made criminal by the statute may have se
rious adverse consequences for "the general public health and welfare," such as
spreading communicable diseases or fostering other criminal activity. Brief for
Petitioner 37. Inasmuch as this case was dismissed by the District Court on the
pleadings, it is not surprising that the record before us is barren of any evide
nce to support petitioner's claim. [Footnote 3/3] In light of the state of the r
ecord, I see
Page 478 U. S. 209
no justification for the Court's attempt to equate the private, consensual sexua
l activity at issue here with the "possession in the home of drugs, firearms, or
stolen goods," ante at 478 U. S. 195, to which Stanley refused to extend its pr
otection. 394 U.S. at 394 U. S. 568, n. 11. None of the behavior so mentioned in
Stanley can properly be viewed as "[v]ictimless," ante at 478 U. S. 195: drugs
and weapons are inherently dangerous, see, e.g., McLaughlin v. United States, 47
6 U. S. 16 (1986), and for property to be "stolen," someone must have been wrong
fully deprived of it. Nothing in the record before the Court provides any justif
ication for finding the activity forbidden by § 16-6-2 to be physically dangerous,
either to the persons engaged in it or to others. [Footnote 3/4]
Page 478 U. S. 210
The core of petitioner's defense of § 16-6-2, however, is that respondent and othe
rs who engage in the conduct prohibited by § 16-6-2 interfere with Georgia's exerc
ise of the "right of the Nation and of the States to maintain a decent society,'
" Paris Adult Theatre I v. Slaton, 413 U.S. at 413 U. S. 59-60, quoting Jacobell
is v. Ohio, 378 U. S. 184, 378 U. S. 199 (1964) (Warren, C.J., dissenting). Esse
ntially, petitioner argues, and the Court agrees, that the fact that the acts de
scribed in § 16-6-2 "for hundreds of years, if not thousands, have been uniformly
condemned as immoral" is a sufficient reason to permit a State to ban them today
. Brief for Petitioner 19; see ante at 478 U. S. 190, 478 U. S. 192-194, 478 U.
S. 196.
I cannot agree that either the length of time a majority has held its conviction
s or the passions with which it defends them can withdraw legislation from this
Court's scrutiny. See, e.g., Roe v. Wade, 410 U. S. 113 (1973); Loving v. Virgin
ia, 388 U. S. 1 (1967); Brown v. Board of Education, 347 U. S. 483 (1954). [Foot
note 3/5] As Justice Jackson wrote so eloquently
Page 478 U. S. 211
for the Court in West Virginia Board of Education v. Barnette, 319 U. S. 624, 31
9 U. S. 641-642 (1943),
"we apply the limitations of the Constitution with no fear that freedom to be in
tellectually and spiritually diverse, or even contrary, will disintegrate the so
cial organization. . . . [F]reedom to differ is not limited to things that do no
t matter much. That would be a mere shadow of freedom. The test of its substance
is the right to differ as to things that touch the heart of the existing order.
"
See also Karst, 89 Yale L.J. at 627. It is precisely because the issue raised by
this case touches the heart of what makes individuals what they are that we sho
uld be especially sensitive to the rights of those whose choices upset the major
ity.
The assertion that "traditional Judeo-Christian values proscribe" the conduct in
volved, Brief for Petitioner 20, cannot provide an adequate justification for § 16
-6-2. That certain, but by no means all, religious groups condemn the behavior a
t issue gives the State no license to impose their judgments on the entire citiz
enry. The legitimacy of secular legislation depends, instead, on whether the Sta
te can advance some justification for its law beyond its conformity to religious
doctrine. See, e.g., McGowan v. Maryland, 366 U. S. 420, 366 U. S. 429-453 (196
1); Stone v. Graham, 449 U. S. 39 (1980). Thus, far from buttressing his case, p
etitioner's invocation of Leviticus, Romans, St. Thomas Aquinas, and sodomy's he
retical status during the Middle Ages undermines his suggestion that § 16-6-2 repr
esents a legitimate use of secular coercive power. [Footnote 3/6] A State can no
more punish private behavior because
Page 478 U. S. 212
of religious intolerance than it can punish such behavior because of racial anim
us.
"The Constitution cannot control such prejudices, but neither can it tolerate th
em. Private biases may be outside the reach of the law, but the law cannot, dire
ctly or indirectly, give them effect."
Palmore v. Sidoti, 466 U. S. 429, 466 U. S. 433 (1984). No matter how uncomforta
ble a certain group may make the majority of this Court, we have held that "[m]e
re public intolerance or animosity cannot constitutionally justify the deprivati
on of a person's physical liberty." O'Connor v. Donaldson, 422 U. S. 563, 422 U.
S. 575 (1975). See also Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432
(1985); United States Dept. of Agriculture v. Moreno, 413 U. S. 528, 413 U. S.
534 (1973).
Nor can § 16-6-2 be justified as a "morally neutral" exercise of Georgia's power t
o "protect the public environment," Paris Adult Theatre I, 413 U.S. at 413 U. S.
68-69. Certainly, some private behavior can affect the fabric of society as a w
hole. Reasonable people may differ about whether particular sexual acts are mora
l or immoral, but
"we have ample evidence for believing that people will not abandon morality, wil
l not think any better of murder, cruelty and dishonesty, merely because some pr
ivate sexual practice which they abominate is not punished by the law."
H. L. A. Hart, Immorality and Treason, reprinted in The Law as Literature 220, 2
25 (L. Blom-Cooper ed.1961). Petitioner and the Court fail to see the difference
between laws that protect public sensibilities and those that enforce private m
orality. Statutes banning
Page 478 U. S. 213
public sexual activity are entirely consistent with protecting the individual's
liberty interest in decisions concerning sexual relations: the same recognition
that those decisions are intensely private which justifies protecting them from
governmental interference can justify protecting individuals from unwilling expo
sure to the sexual activities of others. But the mere fact that intimate behavio
r may be punished when it takes place in public cannot dictate how States can re
gulate intimate behavior that occurs in intimate places. See Paris Adult Theatre
I, 413 U.S. at 413 U. S. 66, n. 13 ("marital intercourse on a street corner or
a theater stage" can be forbidden despite the constitutional protection identifi
ed in Griswold v. Connecticut, 381 U. S. 479 (1965)). [Footnote 3/7]
This case involves no real interference with the rights of others, for the mere
knowledge that other individuals do not adhere to one's value system cannot be a
legally cognizable interest, cf. Diamond v. Charles, 476 U. S. 54, 476 U. S. 65
-66 (1986), let alone an interest that can justify invading the houses, hearts,
and minds of citizens who choose to live their lives differently.
IV
It took but three years for the Court to see the error in its analysis in Miners
ville School District v. Gobitis, 310 U.S.
Page 478 U. S. 214
586 (1940), and to recognize that the threat to national cohesion posed by a ref
usal to salute the flag was vastly outweighed by the threat to those same values
posed by compelling such a salute. See West Virginia Board of Education v. Barn
ette, 319 U. S. 624 (1943). I can only hope that here, too, the Court soon will
reconsider its analysis and conclude that depriving individuals of the right to
choose for themselves how to conduct their intimate relationships poses a far gr
eater threat to the values most deeply rooted in our Nation's history than toler
ance of nonconformity could ever do. Because I think the Court today betrays tho
se values, I dissent.
[Footnote 3/1]
Until 1968, Georgia defined sodomy as "the carnal knowledge and connection again
st the order of nature, by man with man, or in the same unnatural manner with wo
man." Ga.Crim.Code § 26-5901 (1933). In Thompson. v. Aldredge, 187 Ga. 467, 200 S.
E. 799 (1939), the Georgia Supreme Court held that § 26-5901 did not prohibit lesb
ian activity. And in Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963), the G
eorgia Supreme Court held that § 26-5901 did not prohibit heterosexual cunnilingus
. Georgia passed the act-specific statute currently in force "perhaps in respons
e to the restrictive court decisions such as Riley," Note, The Crimes Against Na
ture, 16 J.Pub.L. 159, 167, n. 47 (1967).
[Footnote 3/2]
In Robinson v. California, 370 U. S. 660 (1962), the Court held that the Eighth
Amendment barred convicting a defendant due to his "status" as a narcotics addic
t, since that condition was "apparently an illness which may be contracted innoc
ently or involuntarily." Id. at 370 U. S. 667. In Powell v. Texas, 392 U. S. 514
(1968), where the Court refused to extend Robinson to punishment of public drun
kenness by a chronic alcoholic, one of the factors relied on by JUSTICE MARSHALL
, in writing the plurality opinion, was that Texas had not "attempted to regulat
e appellant's behavior in the privacy of his own home." Id. at 392 U. S. 532. JU
STICE WHITE wrote separately:
"Analysis of this difficult case is not advanced by preoccupation with the label
"condition." In Robinson, the Court dealt with "a statute which makes the statu
s' of narcotic addiction a criminal offense. . . ." 370 U.S. at 370 U. S. 666. B
y precluding criminal conviction for such a "status," the Court was dealing with
a condition brought about by acts remote in time from the application of the cr
iminal sanctions contemplated, a condition which was relatively permanent in dur
ation, and a condition of great magnitude and significance in terms of human beh
avior and values. . . . If it were necessary to distinguish between "acts" and "
conditions" for purposes of the Eighth Amendment, I would adhere to the concept
of "condition" implicit in the opinion in Robinson. . . . The proper subject of
inquiry is whether volitional acts brought about the "condition" and whether tho
se acts are sufficiently proximate to the "condition" for it to be permissible t
o impose penal sanctions on the "condition.""
Id. at 392 U. S. 550-551, n. 2.
Despite historical views of homosexuality, it is no longer viewed by mental heal
th professionals as a "disease" or disorder. See Brief for American Psychologica
l Association and American Public Health Association as Amici Curiae 8-11. But,
obviously, neither is it simply a matter of deliberate personal election. Homose
xual orientation may well form part of the very fiber of an individual's persona
lity. Consequently, under JUSTICE WHITE's analysis in Powell, the Eighth Amendme
nt may pose a constitutional barrier to sending an individual to prison for acti
ng on that attraction regardless of the circumstances. An individual's ability t
o make constitutionally protected "decisions concerning sexual relations," Carey
v. Population Services International, 431 U. S. 678, 431 U. S. 711 (1977) (POWE
LL, J., concurring in part and concurring in judgment), is rendered empty indeed
if he or she is given no real choice but a life without any physical intimacy.
With respect to the Equal Protection Clause's applicability to § 16-6-2, I note th
at Georgia's exclusive stress before this Court on its interest in prosecuting h
omosexual activity despite the gender-neutral terms of the statute may raise ser
ious questions of discriminatory enforcement, questions that cannot be disposed
of before this Court on a motion to dismiss. See Yick Wo v. Hopkins, 118 U. S. 3
56, 118 U. S. 373-374 (1886). The legislature having decided that the sex of the
participants is irrelevant to the legality of the acts, I do not see why the St
ate can defend § 16-6-2 on the ground that individuals singled out for prosecution
are of the same sex as their partners. Thus, under the circumstances of this ca
se, a claim under the Equal Protection Clause may well be available without havi
ng to reach the more controversial question whether homosexuals are a suspect cl
ass. See, e.g., Rowland v. Mad River Local School District, 470 U. S. 1009 (1985
) (BRENNAN, J., dissenting from denial of certiorari); Note, The Constitutional
Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 Harv
.L.Rev. 1285 (1985).
[Footnote 3/3]
Even if a court faced with a challenge to § 16-6-2 were to apply simple rational b
asis scrutiny to the statute, Georgia would be required to show an actual connec
tion between the forbidden acts and the ill effects it seeks to prevent. The con
nection between the acts prohibited by § 16-6-2 and the harms identified by petiti
oner in his brief before this Court is a subject of hot dispute, hardly amenable
to dismissal under Federal Rule of Civil Procedure 12(b)(6). Compare, e.g., Bri
ef for Petitioner 36-37 and Brief for David Robinson, Jr., as Amicus Curiae 23-2
8, on the one hand, with People v. Onofre, 51 N.Y.2d 476, 489, 415 N.E.2d 936, 9
41 (1980); Brief for the Attorney General of the State of New York, joined by th
e Attorney General of the State of California, as Amici Curiae 11-14; and Brief
for the American Psychological Association and American Public Health Associatio
n as Amici Curiae 19-27, on the other.
[Footnote 3/4]
Although I do not think it necessary to decide today issues that are not even re
motely before us, it does seem to me that a court could find simple analytically
sound distinctions between certain private, consensual sexual conduct, on the o
ne hand, and adultery and incest (the only two vaguely specific "sexual crimes"
to which the majority points, ante at 478 U. S. 196), on the other. For example,
marriage, in addition to its spiritual aspects, is a civil contract that entitl
es the contracting parties to a variety of governmentally provided benefits. A S
tate might define the contractual commitment necessary to become eligible for th
ese benefits to include a commitment of fidelity, and then punish individuals fo
r breaching that contract. Moreover, a State might conclude that adultery is lik
ely to injure third persons, in particular, spouses and children of persons who
engage in extramarital affairs. With respect to incest, a court might well agree
with respondent that the nature of familial relationships renders true consent
to incestuous activity sufficiently problematical that a blanket prohibition of
such activity is warranted. See Tr. of Oral Arg. 21-22. Notably, the Court makes
no effort to explain why it has chosen to group private, consensual homosexual
activity with adultery and incest, rather than with private, consensual heterose
xual activity by unmarried persons or, indeed, with oral or anal sex within marr
iage.
[Footnote 3/5]
The parallel between Loving and this case is almost uncanny. There, too, the Sta
te relied on a religious justification for its law. Compare 388 U.S. at 388 U. S
. 3 (quoting trial court's statement that "Almighty God created the races white,
black, yellow, malay and red, and he placed them on separate continents. . . .
The fact that he separated the races shows that he did not intend for the races
to mix"), with Brief for Petitioner 20-21 (relying on the Old and New Testaments
and the writings of St. Thomas Aquinas to show that "traditional Judeo-Christia
n values proscribe such conduct"). There, too, defenders of the challenged statu
te relied heavily on the fact that, when the Fourteenth Amendment was ratified,
most of the States had similar prohibitions. Compare Brief for Appellee in Lovin
g v. Virginia, O.T. 1966, No. 395, pp. 28-29, with ante at 478 U. S. 192-194, an
d n. 6. There, too, at the time the case came before the Court, many of the Stat
es still had criminal statutes concerning the conduct at issue. Compare 388 U.S.
at 388 U. S. 6, n. 5 (noting that 16 States still outlawed interracial marriage
), with ante at 478 U. S. 193-194 (noting that 24 States and the District of Col
umbia have sodomy statutes). Yet the Court held not only that the invidious raci
sm of Virginia's law violated the Equal Protection Clause, see 388 U.S. at 388 U
. S. 7-12, but also that the law deprived the Lovings of due process by denying
them the "freedom of choice to marry" that had "long been recognized as one of t
he vital personal rights essential to the orderly pursuit of happiness by free m
en." Id. at 388 U. S. 12.
[Footnote 3/6]
The theological nature of the origin of Anglo-American antisodomy statutes is pa
tent. It was not until 1533 that sodomy was made a secular offense in England. 2
5 Hen. VIII, ch. 6. Until that time, the offense was, in Sir James Stephen's wor
ds, "merely ecclesiastical." 2 J. Stephen, A History of the Criminal Law of Engl
and 429-430 (1883). Pollock and Maitland similarly observed that "[t]he crime ag
ainst nature . . . was so closely connected with heresy that the vulgar had but
one name for both." 2 F. Pollock & F. Maitland, The History of English Law 554 (
1895). The transfer of jurisdiction over prosecutions for sodomy to the secular
courts seems primarily due to the alteration of ecclesiastical jurisdiction atte
ndant on England's break with the Roman Catholic Church, rather than to any new
understanding of the sovereign's interest in preventing or punishing the behavio
r involved. Cf. 6 E. Coke, Institutes, ch. 10 (4th ed. 1797).
[Footnote 3/7]
At oral argument, a suggestion appeared that, while the Fourth Amendment's speci
al protection of the home might prevent the State from enforcing § 16-6-2 against
individuals who engage in consensual sexual activity there, that protection woul
d not make the statute invalid. See Tr. of Oral Arg. 10-11. The suggestion misse
s the point entirely. If the law is not invalid, then the police can invade the
home to enforce it, provided, of course, that they obtain a determination of pro
bable cause from a neutral magistrate. One of the reasons for the Court's holdin
g in Griswold v. Connecticut, 381 U. S. 479 (1965), was precisely the possibilit
y, and repugnancy, of permitting searches to obtain evidence regarding the use o
f contraceptives. Id. at 381 U. S. 485-486. Permitting the kinds of searches tha
t might be necessary to obtain evidence of the sexual activity banned by § 16-6-2
seems no less intrusive or repugnant. Cf. Winston v. Lee, 470 U. S. 753 (1985);
Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1274 (CA7 1983).
JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting
.
Like the statute that is challenged in this case, [Footnote 4/1] the rationale o
f the Court's opinion applies equally to the prohibited conduct regardless of wh
ether the parties who engage in it are married or unmarried, or are of the same
or different sexes. [Footnote 4/2] Sodomy was condemned as an odious and sinful
type of behavior during the formative period of the common law. [Footnote 4/3]
Page 478 U. S. 215
That condemnation was equally damning for heterosexual and homosexual sodomy. [F
ootnote 4/4] Moreover, it provided no special exemption for married couples. [Fo
otnote 4/5] The license to cohabit and to produce legitimate offspring simply di
d not include any permission to engage in sexual conduct that was considered a "
crime against nature."
The history of the Georgia statute before us clearly reveals this traditional pr
ohibition of heterosexual, as well as homosexual, sodomy. [Footnote 4/6] Indeed,
at one point in the 20th century, Georgia's law was construed to permit certain
sexual conduct between homosexual women even though such conduct was prohibited
between heterosexuals. [Footnote 4/7] The history of the statutes cited by the
majority as proof for the proposition that sodomy is not constitutionally protec
ted, ante at 478 U. S. 192-194,
Page 478 U. S. 216
and nn. 5 and 6, similarly reveals a prohibition on heterosexual, as well as hom
osexual, sodomy. [Footnote 4/8]
Because the Georgia statute expresses the traditional view that sodomy is an imm
oral kind of conduct regardless of the identity of the persons who engage in it,
I believe that a proper analysis of its constitutionality requires consideratio
n of two questions: first, may a State totally prohibit the described conduct by
means of a neutral law applying without exception to all persons subject to its
jurisdiction? If not, may the State save the statute by announcing that it will
only enforce the law against homosexuals? The two questions merit separate disc
ussion.
I
Our prior cases make two propositions abundantly clear. First, the fact that the
governing majority in a State has traditionally viewed a particular practice as
immoral is not a sufficient reason for upholding a law prohibiting the practice
; neither history nor tradition could save a law prohibiting miscegenation from
constitutional attack. [Footnote 4/9] Second, individual decisions by married pe
rsons, concerning the intimacies of their physical relationship, even when not i
ntended to produce offspring, are a form of "liberty" protected by the Due Proce
ss Clause of the Fourteenth Amendment. Griswold v. Connecticut, 381 U. S. 479 (1
965). Moreover, this protection extends to intimate choices by unmarried, as wel
l as married, persons. Carey v. Population Services International, 431 U. S. 678
(1977); Eisenstadt v. Baird, 405 U. S. 438 (1972).
Page 478 U. S. 217
In consideration of claims of this kind, the Court has emphasized the individual
 interest in privacy, but its decisions have actually been animated by an even m
ore fundamental concern. As I wrote some years ago:
"These cases do not deal with the individual's interest in protection from unwar
ranted public attention, comment, or exploitation. They deal, rather, with the i
ndividual's right to make certain unusually important decisions that will affect
his own, or his family's, destiny. The Court has referred to such decisions as
implicating 'basic values,' as being 'fundamental,' and as being dignified by hi
story and tradition. The character of the Court's language in these cases brings
to mind the origins of the American heritage of freedom -- the abiding interest
in individual liberty that makes certain state intrusions on the citizen's righ
t to decide how he will live his own life intolerable. Guided by history, our tr
adition of respect for the dignity of individual choice in matters of conscience
and the restraints implicit in the federal system, federal judges have accepted
the responsibility for recognition and protection of these rights in appropriat
e cases."
Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716, 719-720 (CA7 1975) (footno
tes omitted), cert. denied, 425 U.S. 916 (1976).
Society has every right to encourage its individual members to follow particular
traditions in expressing affection for one another and in gratifying their pers
onal desires. It, of course, may prohibit an individual from imposing his will o
n another to satisfy his own selfish interests. It also may prevent an individua
l from interfering with, or violating, a legally sanctioned and protected relati
onship, such as marriage. And it may explain the relative advantages and disadva
ntages of different forms of intimate expression. But when individual married co
uples are isolated from observation by others, the way in which they voluntarily
choose to conduct their intimate relations is a matter for them -- not the
Page 478 U. S. 218
State -- to decide. [Footnote 4/10] The essential "liberty" that animated the de
velopment of the law in cases like Griswold, Eisenstadt, and Carey surely embrac
es the right to engage in nonreproductive sexual conduct that others may conside
r offensive or immoral.
Paradoxical as it may seem, our prior cases thus establish that a State may not
prohibit sodomy within "the sacred precincts of marital bedrooms," Griswold, 381
U.S. at 381 U. S. 485, or, indeed, between unmarried heterosexual adults. Eisen
stadt, 405 U.S. at 405 U. S. 453. In all events, it is perfectly clear that the
State of Georgia may not totally prohibit the conduct proscribed by § 16-6-2 of th
e Georgia Criminal Code.
II
If the Georgia statute cannot be enforced as it is written -- if the conduct it
seeks to prohibit is a protected form of liberty for the vast majority of Georgi
a's citizens -- the State must assume the burden of justifying a selective appli
cation of its law. Either the persons to whom Georgia seeks to apply its statute
do not have the same interest in "liberty" that others have, or there must be a
reason why the State may be permitted to apply a generally applicable law to ce
rtain persons that it does not apply to others.
The first possibility is plainly unacceptable. Although the meaning of the princ
iple that "all men are created equal" is not always clear, it surely must mean t
hat every free citizen has the same interest in "liberty" that the members of th
e majority share. From the standpoint of the individual, the homosexual and the
heterosexual have the same interest in deciding how he will live his own life, a
nd, more narrowly, how he will conduct himself in his personal and voluntary
Page 478 U. S. 219
associations with his companions. State intrusion into the private conduct of ei
ther is equally burdensome.
The second possibility is similarly unacceptable. A policy of selective applicat
ion must be supported by a neutral and legitimate interest -- something more sub
stantial than a habitual dislike for, or ignorance about, the disfavored group.
Neither the State nor the Court has identified any such interest in this case. T
he Court has posited as a justification for the Georgia statute "the presumed be
lief of a majority of the electorate in Georgia that homosexual sodomy is immora
l and unacceptable." Ante at 478 U. S. 196. But the Georgia electorate has expre
ssed no such belief -- instead, its representatives enacted a law that presumabl
y reflects the belief that all sodomy is immoral and unacceptable. Unless the Co
urt is prepared to conclude that such a law is constitutional, it may not rely o
n the work product of the Georgia Legislature to support its holding. For the Ge
orgia statute does not single out homosexuals as a separate class meriting speci
al disfavored treatment.
Nor, indeed, does the Georgia prosecutor even believe that all homosexuals who v
iolate this statute should be punished. This conclusion is evident from the fact
that the respondent in this very case has formally acknowledged in his complain
t and in court that he has engaged, and intends to continue to engage, in the pr
ohibited conduct, yet the State has elected not to process criminal charges agai
nst him. As JUSTICE POWELL points out, moreover, Georgia's prohibition on privat
e, consensual sodomy has not been enforced for decades. [Footnote 4/11] The reco
rd of nonenforcement, in this case and in the last several decades, belies the A
ttorney General's representations
Page 478 U. S. 220
about the importance of the State's selective application of its generally appli
cable law. [Footnote 4/12]
Both the Georgia statute and the Georgia prosecutor thus completely fail to prov
ide the Court with any support for the conclusion that homosexual sodomy, simpli
citer, is considered unacceptable conduct in that State, and that the burden of
justifying a selective application of the generally applicable law has been met.
III
The Court orders the dismissal of respondent's complaint even though the State's
statute prohibits all sodomy; even though that prohibition is concededly uncons
titutional with respect to heterosexuals; and even though the State's post hoc e
xplanations for selective application are belied by the State's own actions. At
the very least, I think it clear at this early stage of the litigation that resp
ondent has alleged a constitutional claim sufficient to withstand a motion to di
smiss. [Footnote 4/13]
I respectfully dissent.
[Footnote 4/1]
See Ga.Code Ann. § 16-6-2(a) (1984) ("A person commits the offense of sodomy when
he performs or submits to any sexual act involving the sex organs of one person
and the mouth or anus of another").
[Footnote 4/2]
The Court states that the
"issue presented is whether the Federal Constitution confers a fundamental right
upon homosexuals to engage in sodomy, and hence invalidates the laws of the man
y States that still make such conduct illegal, and have done so for a very long
time."
Ante at 478 U. S. 190. In reality, however, it is the indiscriminate prohibition
of sodomy, heterosexual as well as homosexual, that has been present "for a ver
y long time." See nn. 478 U. S. 3, 478 U. S. 4, and 478 U. S. 5, infra. Moreover
, the reasoning the Court employs would provide the same support for the statute
as it is written as it does for the statute as it is narrowly construed by the
Court.
[Footnote 4/3]
See, e.g., 1 W. Hawkins, Pleas of the Crown 9 (6th ed. 1787) ("All unnatural car
nal copulations, whether with man or beast, seem to come under the notion of sod
omy, which was felony by the ancient common law, and punished, according to some
authors, with burning; according to others, with burying alive"); 4 W. Blacksto
ne, Commentaries *215 (discussing "the infamous crime against nature, committed
either with man or beast; a crime which ought to be strictly and impartially pro
ved, and then as strictly and impartially punished").
[Footnote 4/4]
See 1 E. East, Pleas of the Crown 480 (1803) ("This offence, concerning which th
e least notice is the best, consists in a carnal knowledge committed against the
order of nature by man with man, or in the same unnatural manner with woman, or
by man or woman in any manner with beast"); J. Hawley & M. McGregor, The Crimin
al Law 287 (3d ed. 1899) ("Sodomy is the carnal knowledge against the order of n
ature by two persons with each other, or of a human being with a beast. . . . Th
e offense may be committed between a man and a woman, or between two male person
s, or between a man or a woman and a beast").
[Footnote 4/5]
See J. May, The Law of Crimes § 203 (2d ed. 1893) ("Sodomy, otherwise called bugge
ry, bestiality, and the crime against nature, is the unnatural copulation of two
persons with each other, or of a human being with a beast. . . . It may be comm
itted by a man with a man, by a man with a beast, or by a woman with a beast, or
by a man with a woman -- his wife, in which case, if she consent, she is an acc
omplice").
[Footnote 4/6]
The predecessor of the current Georgia statute provided:
"Sodomy is the carnal knowledge and connection against the order of nature, by m
an with man, or in the same unnatural manner with woman."
Ga.Code, Tit. 1, Pt. 4, § 4251 (1861). This prohibition of heterosexual sodomy was
not purely hortatory. See, e.g., Comer v. State, 21 Ga.App. 306, 94 S.E. 314 (1
917) (affirming prosecution for consensual heterosexual sodomy).
[Footnote 4/7]
See Thompson v. Aldredge, 187 Ga. 467, 200 S.E. 799 (1939).
[Footnote 4/8]
A review of the statutes cited by the majority discloses that, in 1791, in 1868,
and today, the vast majority of sodomy statutes do not differentiate between ho
mosexual and heterosexual sodomy.
[Footnote 4/9]
See Loving v. Virginia, 388 U. S. 1 (1967). Interestingly, miscegenation was onc
e treated as a crime similar to sodomy. See Hawley & McGregor, The Criminal Law,
at 287 (discussing crime of sodomy); id. at 288 (discussing crime of miscegenat
ion).
[Footnote 4/10]
Indeed, the Georgia Attorney General concedes that Georgia's statute would be un
constitutional if applied to a married couple. See Tr. of Oral Arg. 8 (stating t
hat application of the statute to a married couple "would be unconstitutional" b
ecause of the "right of marital privacy as identified by the Court in Griswold")
. Significantly, Georgia passed the current statute three years after the Court'
s decision in Griswold.
[Footnote 4/11]
Ante at 478 U. S. 198, n. 2 (POWELL, J., concurring). See also Tr. of Oral Arg.
4-5 (argument of Georgia Attorney General) (noting, in response to question abou
t prosecution "where the activity took place in a private residence," the "last
case I can recall was back in the 1930's or 40's").
[Footnote 4/12]
It is, of course, possible to argue that a statute has a purely symbolic role. C
f. Carey v. Population Services International, 431 U. S. 678, 431 U. S. 715, n.
3 (1977) (STEVENS, J., concurring in part and concurring in judgment) ("The fact
that the State admittedly has never brought a prosecution under the statute . .
. is consistent with appellants' position that the purpose of the statute is me
rely symbolic"). Since the Georgia Attorney General does not even defend the sta
tute as written, however, see 478 U. S. 10, supra, the State cannot possibly res
t on the notion that the statute may be defended for its symbolic message.
[Footnote 4/13]
Indeed, at this stage, it appears that the statute indiscriminately authorizes a
policy of selective prosecution that is neither limited to the class of homosex
ual persons nor embraces all persons in that class, but rather applies to those
who may be arbitrarily selected by the prosecutor for reasons that are not revea
led either in the record of this case or in the text of the statute. If that is
true, although the text of the statute is clear enough, its true meaning may be
"so intolerably vague that evenhanded enforcement of the law is a virtual imposs
ibility." Marks v. United States, 430 U. S. 188, 430 U. S. 198 (1977) (STEVENS,
J., concurring in part and dissenting in part).
Syllabus
LAWRENCE ET AL. v. TEXAS
CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT
No. 02-102. Argued March 26, 2003-Decided June 26, 2003
Responding to a reported weapons disturbance in a private residence, Houston pol
ice entered petitioner Lawrence's apartment and saw him and another adult man, p
etitioner Garner, engaging in a private, consensual sexual act. Petitioners were
arrested and convicted of deviate sexual intercourse in violation of a Texas st
atute forbidding two persons of the same sex to engage in certain intimate sexua
l conduct. In affirming, the State Court of Appeals held, inter alia, that the s
tatute was not unconstitutional under the Due Process Clause of the Fourteenth A
mendment. The court considered Bowers v. Hardwick, 478 U. S. 186, controlling on
that point.
Held: The Texas statute making it a crime for two persons of the same sex to eng
age in certain intimate sexual conduct violates the Due Process Clause. pp. 564-
579.
(a) Resolution of this case depends on whether petitioners were free as adults t
o engage in private conduct in the exercise of their liberty under the Due Proce
ss Clause. For this inquiry the Court deems it necessary to reconsider its Bower
s holding. The Bowers Court's initial substantive statement-"The issue presented
is whether the Federal Constitution confers a fundamental right upon homosexual
s to engage in sodomy ... ," 478 U. S., at 190-discloses the Court's failure to
appreciate the extent of the liberty at stake. To say that the issue in Bowers w
as simply the right to engage in certain sexual conduct demeans the claim the in
dividual put forward, just as it would demean a married couple were it said that
marriage is just about the right to have sexual intercourse. Although the laws
involved in Bowers and here purport to do no more than prohibit a particular sex
ual act, their penalties and purposes have more far-reaching consequences, touch
ing upon the most private human conduct, sexual behavior, and in the most privat
e of places, the home. They seek to control a personal relationship that, whethe
r or not entitled to formal recognition in the law, is within the liberty of per
sons to choose without being punished as criminals. The liberty protected by the
Constitution allows homosexual persons the right to choose to enter upon relati
onships in the confines of their homes and their own private lives and still ret
ain their dignity as free persons. Pp. 564-567.
559
(b) Having misapprehended the liberty claim presented to it, the Bowers Court st
ated that proscriptions against sodomy have ancient roots. 478 U. S., at 192. It
should be noted, however, that there is no longstanding history in this country
of laws directed at homosexual conduct as a distinct matter. Early American sod
omy laws were not directed at homosexuals as such but instead sought to prohibit
nonprocreative sexual activity more generally, whether between men and women or
men and men. Moreover, early sodomy laws seem not to have been enforced against
consenting adults acting in private. Instead, sodomy prosecutions often involve
d predatory acts against those who could not or did not consent: relations betwe
en men and minor girls or boys, between adults involving force, between adults i
mplicating disparity in status, or between men and animals. The longstanding cri
minal prohibition of homosexual sodomy upon which Bowers placed such reliance is
as consistent with a general condemnation of nonprocreative sex as it is with a
n established tradition of prosecuting acts because of their homosexual characte
r. Far from possessing "ancient roots," ibid., American laws targeting same-sex
couples did not develop until the last third of the 20th century. Even now, only
nine States have singled out samesex relations for criminal prosecution. Thus,
the historical grounds relied upon in Bowers are more complex than the majority
opinion and the concurring opinion by Chief Justice Burger there indicated. They
are not without doubt and, at the very least, are overstated. The Bowers Court
was, of course, making the broader point that for centuries there have been powe
rful voices to condemn homosexual conduct as immoral, but this Court's obligatio
n is to define the liberty of all, not to mandate its own moral code, Planned Pa
renthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850. The Nation's laws and
traditions in the past half century are most relevant here. They show an emergi
ng awareness that liberty gives substantial protection to adult persons in decid
ing how to conduct their private lives in matters pertaining to sex. See County
of Sacramento v. Lewis, 523 U. S. 833, 857. Pp. 567-573.
(c) Bowers' deficiencies became even more apparent in the years following its an
nouncement. The 25 States with laws prohibiting the conduct referenced in Bowers
are reduced now to 13, of which 4 enforce their laws only against homosexual co
nduct. In those States, including Texas, that still proscribe sodomy (whether fo
r same-sex or heterosexual conduct), there is a pattern of nonenforcement with r
espect to consenting adults acting in private. Casey, supra, at 851-which confir
med that the Due Process Clause protects personal decisions relating to marriage
, procreation, contraception, family relationships, child rearing, and education
-and Romer v. Evans, 517 U. S. 620, 624-which struck down class-based legislatio
n directed at homosexuals-cast Bow-
560
Syllabus
ers' holding into even more doubt. The stigma the Texas criminal statute imposes
, moreover, is not trivial. Although the offense is but a minor misdemeanor, it
remains a criminal offense with all that imports for the dignity of the persons
charged, including notation of convictions on their records and on job applicati
on forms, and registration as sex offenders under state law. Where a case's foun
dations have sustained serious erosion, criticism from other sources is of great
er significance. In the United States, criticism of Bowers has been substantial
and continuing, disapproving of its reasoning in all respects, not just as to it
s historical assumptions. And, to the extent Bowers relied on values shared with
a wider civilization, the case's reasoning and holding have been rejected by th
e European Court of Human Rights, and that other nations have taken action consi
stent with an affirmation of the protected right of homosexual adults to engage
in intimate, consensual conduct. There has been no showing that in this country
the governmental interest in circumscribing personal choice is somehow more legi
timate or urgent. Stare decisis is not an inexorable command. Payne v. Tennessee
, 501 U. S. 808, 828. Bowers' holding has not induced detrimental reliance of th
e sort that could counsel against overturning it once there are compelling reaso
ns to do so. Casey, supra, at 855-856. Bowers causes uncertainty, for the preced
ents before and after it contradict its central holding. Pp. 573-577.
(d) Bowers' rationale does not withstand careful analysis. In his dissenting opi
nion in Bowers JUSTICE STEVENS concluded that (1) the fact that a State's govern
ing majority has traditionally viewed a particular practice as immoral is not a
sufficient reason for upholding a law prohibiting the practice, and (2) individu
al decisions concerning the intimacies of physical relationships, even when not
intended to produce offspring, are a form of "liberty" protected by due process.
That analysis should have controlled Bowers, and it controls here. Bowers was n
ot correct when it was decided, is not correct today, and is hereby overruled. T
his case does not involve minors, persons who might be injured or coerced, those
who might not easily refuse consent, or public conduct or prostitution. It does
involve two adults who, with full and mutual consent, engaged in sexual practic
es common to a homosexual lifestyle. Petitioners' right to liberty under the Due
Process Clause gives them the full right to engage in private conduct without g
overnment intervention. Casey, supra, at 847. The Texas statute furthers no legi
timate state interest which can justify its intrusion into the individual's pers
onal and private life. Pp. 577-579.
41 S. W. 3d 349, reversed and remanded.
561
KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSB
URG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the j
udgment, post, p. 579. SCALIA, J., filed a dissenting opinion, in which REHNQUIS
T, C. J., and THOMAS, J., joined, post, p. 586. THOMAS, J., filed a dissenting o
pinion, post, p. 605.
Paul M. Smith argued the cause for petitioners. With him on the briefs were Will
iam M. Hohengarten, Daniel Mach, Mitchell Katine, Ruth E. Harlow, Patricia M. Lo
gue, and Susan L. Sommer.
Charles A. Rosenthal, Jr., argued the cause for respondent. With him on the brie
f were William J. Delmore III and Scott A. Durfee. *
*Briefs of amici curiae urging reversal were filed for the Alliance of Baptists
et al. by Robert A. Long, Jr., and Thomas L. Cubbage III; for the American Psych
ological Association et al. by David W Ogden, Paul R. Q. Wolfson, Richard G. Tar
anto, Nathalie F. P. Gilfoyle, and Carolyn I. Polowy; for the American Public He
alth Association et al. by Jeffrey S. Trachtman and Norman C. Simon; for the Cat
o Institute by Robert A. Levy; for Constitutional Law Professors by Pamela S. Ka
rlan and William B. Rubenstein; for the Human Rights Campaign et al. by Walter D
ellinger, Pamela Harris, and Jonathan D. Hacker; for the Log Cabin Republicans e
t al. by C. Martin Meekins; for the NOW Legal Defense and Education Fund by Davi
d C. Codell, Laura W Brill, and Wendy R. Weiser; for Professors of History by Ro
y T. Englert, Jr., Alan Untereiner, and Sherri Lynn Wolson; for the Republican U
nity Coalition et al. by Erik S. Jaffe; and for Mary Robinson et al. by Harold H
ongju Koh and Joseph F. Tringali.
Briefs of amici curiae urging affirmance were filed for the State of Alabama et
al. by William H. Pryor, Jr., Attorney General of Alabama, Nathan A. Forrester,
Solicitor General, and George M. Weaver, and by the Attorneys General for their
respective States as follows: Henry D. M cMaster of South Carolina and Mark L. S
hurtleff of Utah; for Agudath Israel of America by David Zwiebel; for the Americ
an Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May,
James M. Henderson, Sr., Joel H. Thornton, and Walter M. Weber; for the America
n Family Association, Inc., et al. by Stephen M. Crampton, Brian Fahling, and Mi
chael J. DePrimo; for the Center for Arizona Policy et al. by Len L. Munsil; for
the Center for Law and Justice International by Thomas Patrick Monaghan and Joh
n P. Tuskey; for the Center for Marriage Law by Vincent P. McCarthy and Lynn D.
Wardle; for the Center
562
JUSTICE KENNEDY delivered the opinion of the Court. Liberty protects the person
from unwarranted government intrusions into a dwelling or other private places.
In our tradition the State is not omnipresent in the home. And there are other s
pheres of our lives and existence, outside the home, where the State should not
be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes
an autonomy of self that includes freedom of thought, belief, expression, and ce
rtain intimate conduct. The instant case involves liberty of the person both in
its spatial and in its more transcendent dimensions.
I
The question before the Court is the validity of a Texas statute making it a cri
me for two persons of the same sex to engage in certain intimate sexual conduct.
In Houston, Texas, officers of the Harris County Police Department were dispatch
ed to a private residence in response to a reported weapons disturbance. They en
tered an apartment where one of the petitioners, John Geddes Lawrence,
for the Original Intent of the Constitution by Michael P. Farris and Jordan W Lo
rence; for Concerned Women for America by Janet M. LaRue; for the Family Researc
h Council, Inc., by Robert P. George; for First Principles, Inc., by Ronald D. R
ay; for Liberty Counsel by Mathew D. Staver and Rena M. Lindevaldsen; for the Pr
o Family Law Center et al. by Richard D. Ackerman and Gary G. Kreep; for Public
Advocate of the United States et al. by Herbert W Titus and William J. Olson; fo
r the Texas Eagle Forum et al. by Teresa Stanton Collett; for Texas Legislator W
arren Chisum et al. by Kelly Shackelford and Scott Roberts; for the Texas Physic
ians Resource Council et al. by Glen Lavy; and for United Families International
by Paul Benjamin Linton.
Briefs of amici curiae were filed for the American Bar Association by Alfred P.
Carlton, Jr., Ruth N. Borenstein, and Beth S. Brinkmann; for the American Civil
Liberties Union et al. by Laurence H. Tribe, James D. Esseks, Steven R. Shapiro,
and Matthew A. Coles; for the Institute for Justice by William H. Mellor, Clint
Bolick, Dana Berliner, and Randy E. Barnett; and for the National Lesbian and G
ay Law Association et al. by Chai R. Feldblum, J. Paul Oetken, and Scott Ruskay-
Kidd.
563
resided. The right of the police to enter does not seem to have been questioned.
The officers observed Lawrence and another man, Tyron Garner, engaging in a sex
ual act. The two petitioners were arrested, held in custody overnight, and charg
ed and convicted before a Justice of the Peace.
The complaints described their crime as "deviate sexual intercourse, namely anal
sex, with a member of the same sex (man)." App. to Pet. for Cert. 127a, 139a. T
he applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It provides: "A
person commits an offense if he engages in deviate sexual intercourse with anot
her individual of the same sex." The statute defines "[d]eviate sexual intercour
se" as follows:
"(A) any contact between any part of the genitals of one person and the mout
h or anus of another person; or "(B) the penetration of the genitals or the anus
of another person with an object." § 21.01(1).
The petitioners exercised their right to a trial de novo in Harris County Crimin
al Court. They challenged the statute as a violation of the Equal Protection Cla
use of the Fourteenth Amendment and of a like provision of the Texas Constitutio
n. Tex. Const., Art. 1, § 3a. Those contentions were rejected. The petitioners, ha
ving entered a plea of nolo contendere, were each fined $200 and assessed court
costs of $141.25. App. to Pet. for Cert. 107a-llOa.
The Court of Appeals for the Texas Fourteenth District considered the petitioner
s' federal constitutional arguments under both the Equal Protection and Due Proc
ess Clauses of the Fourteenth Amendment. After hearing the case en banc the cour
t, in a divided opinion, rejected the constitutional arguments and affirmed the
convictions. 41 S. W. 3d 349 (2001). The majority opinion indicates that the Cou
rt of Appeals considered our decision in Bowers v. Hardwick, 478 U. S. 186 (1986
), to be controlling on the federal due process aspect of the case. Bowers then
being authoritative, this was proper.
564
We granted certiorari, 537 U. S. 1044 (2002), to consider
three questions:
1. Whether petitioners' criminal convictions under the Texas "Homosexual Con
duct" law-which criminalizes sexual intimacy by same-sex couples, but not identi
cal behavior by different-sex couples-violate the Fourteenth Amendment guarantee
of equal protection of the laws.
2. Whether petitioners' criminal convictions for adult consensual sexual int
imacy in the home violate their vital interests in liberty and privacy protected
by the Due Process Clause of the Fourteenth Amendment.
3. Whether Bowers v. Hardwick, supra, should be overruled? See Pet. for Cert
. i.
The petitioners were adults at the time of the alleged offense. Their conduct wa
s in private and consensual.
II
We conclude the case should be resolved by determining whether the petitioners w
ere free as adults to engage in the private conduct in the exercise of their lib
erty under the Due Process Clause of the Fourteenth Amendment to the Constitutio
n. For this inquiry we deem it necessary to reconsider the Court's holding in Bo
wers.
There are broad statements of the substantive reach of liberty under the Due Pro
cess Clause in earlier cases, including Pierce v. Society of Sisters, 268 U. S.
510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but the most pertinent
beginning point is our decision in Griswold v. Connecticut, 381 U. S. 479 (1965)
.
In Griswold the Court invalidated a state law prohibiting the use of drugs or de
vices of contraception and counseling or aiding and abetting the use of contrace
ptives. The Court described the protected interest as a right to privacy and
565
placed emphasis on the marriage relation and the protected space of the marital
bedroom. Id., at 485.
After Griswold it was established that the right to make certain decisions regar
ding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Ba
ird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribut
ion of contraceptives to unmarried persons. The case was decided under the Equal
Protection Clause, id., at 454; but with respect to unmarried persons, the Cour
t went on to state the fundamental proposition that the law impaired the exercis
e of their personal rights, ibid. It quoted from the statement of the Court of A
ppeals finding the law to be in conflict with fundamental human rights, and it f
ollowed with this statement of its own:
"It is true that in Griswold the right of privacy in question inhered in the
marital relationship .... If the right of privacy means anything, it is the rig
ht of the individual, married or single, to be free from unwarranted governmenta
l intrusion into matters so fundamentally affecting a person as the decision whe
ther to bear or beget a child." Id., at 453.
The opinions in Griswold and Eisenstadt were part of the background for the deci
sion in Roe v. Wade, 410 U. S. 113 (1973). As is well known, the case involved a
challenge to the Texas law prohibiting abortions, but the laws of other States
were affected as well. Although the Court held the woman's rights were not absol
ute, her right to elect an abortion did have real and substantial protection as
an exercise of her liberty under the Due Process Clause. The Court cited cases t
hat protect spatial freedom and cases that go well beyond it. Roe recognized the
 right of a woman to make certain fundamental decisions affecting her destiny an
d confirmed once more that the protection of liberty under the Due Process Claus
e has a substantive dimension of fundamental significance in defining the rights
of the person.
566
In Carey v. Population Services Int'l, 431 U. S. 678 (1977), the Court confronte
d a New York law forbidding sale or distribution of contraceptive devices to per
sons under 16 years of age. Although there was no single opinion for the Court,
the law was invalidated. Both Eisenstadt and Carey, as well as the holding and r
ationale in Roe, confirmed that the reasoning of Griswold could not be confined
to the protection of rights of married adults. This was the state of the law wit
h respect to some of the most relevant cases when the Court considered Bowers v.
Hardwick.
The facts in Bowers had some similarities to the instant case. A police officer,
whose right to enter seems not to have been in question, observed Hardwick, in
his own bedroom, engaging in intimate sexual conduct with another adult male. Th
e conduct was in violation of a Georgia statute making it a criminal offense to
engage in sodomy. One difference between the two cases is that the Georgia statu
te prohibited the conduct whether or not the participants were of the same sex,
while the Texas statute, as we have seen, applies only to participants of the sa
me sex. Hardwick was not prosecuted, but he brought an action in federal court t
o declare the state statute invalid. He alleged he was a practicing homosexual a
nd that the criminal prohibition violated rights guaranteed to him by the Consti
tution. The Court, in an opinion by Justice White, sustained the Georgia law. Ch
ief Justice Burger and Justice Powell joined the opinion of the Court and filed
separate, concurring opinions. Four Justices dissented. 478 U. S., at 199 (opini
on of Blackmun, J., joined by Brennan, Marshall, and STEVENS, JJ.); id., at 214
(opinion of STEVENS, J., joined by Brennan and Marshall, JJ.).
The Court began its substantive discussion in Bowers as follows: "The issue pres
ented is whether the Federal Constitution confers a fundamental right upon homos
exuals to engage in sodomy and hence invalidates the laws of the many States tha
t still make such conduct illegal and have done so
567
for a very long time." Id., at 190. That statement, we now conclude, discloses t
he Court's own failure to appreciate the extent of the liberty at stake. To say
that the issue in Bowers was simply the right to engage in certain sexual conduc
t demeans the claim the individual put forward, just as it would demean a marrie
d couple were it to be said marriage is simply about the right to have sexual in
tercourse. The laws involved in Bowers and here are, to be sure, statutes that p
urport to do no more than prohibit a particular sexual act. Their penalties and
purposes, though, have more farreaching consequences, touching upon the most pri
vate human conduct, sexual behavior, and in the most private of places, the home
. The statutes do seek to control a personal relationship that, whether or not e
ntitled to formal recognition in the law, is within the liberty of persons to ch
oose without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a cour
t, to define the meaning of the relationship or to set its boundaries absent inj
ury to a person or abuse of an institution the law protects. It suffices for us
to acknowledge that adults may choose to enter upon this relationship in the con
fines of their homes and their own private lives and still retain their dignity
as free persons. When sexuality finds overt expression in intimate conduct with
another person, the conduct can be but one element in a personal bond that is mo
re enduring. The liberty protected by the Constitution allows homosexual persons
 the right to make this choice.
Having misapprehended the claim of liberty there presented to it, and thus stati
ng the claim to be whether there is a fundamental right to engage in consensual
sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient
roots." Id., at 192. In academic writings, and in many of the scholarly amicus b
riefs filed to assist the Court in this case, there are fundamental criticisms o
f the historical premises relied upon by the majority and concurring opin-
568
ions in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for Ameri
can Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of
History et al. as Amici Curiae 3-10. We need not enter this debate in the attemp
t to reach a definitive historical judgment, but the following considerations co
unsel against adopting the definitive conclusions upon which Bowers placed such
reliance.
At the outset it should be noted that there is no longstanding history in this c
ountry of laws directed at homosexual conduct as a distinct matter. Beginning in
colonial times there were prohibitions of sodomy derived from the English crimi
nal laws passed in the first instance by the Reformation Parliament of 1533. The
English prohibition was understood to include relations between men and women a
s well as relations between men and men. See, e. g., King v. Wiseman, 92 Eng. Re
p. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533 as including wom
en and girls). Nineteenth-century commentators similarly read American sodomy, b
uggery, and crime-against-nature statutes as criminalizing certain relations bet
ween men and women and between men and men. See, e. g., 2 J. Bishop, Criminal La
w § 1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. De sty, A
Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes § 203 (2
d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct ma
y be explained in part by noting that according to some scholars the concept of
the homosexual as a distinct category of person did not emerge until the late 19
th century. See, e. g., J. Katz, The Invention of Heterosexuality 10 (1995); J.
D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121
(2d ed. 1997) ("The modern terms homosexuality and heterosexuality do not apply
to an era that had not yet articulated these distinctions"). Thus early American
sodomy laws were not directed at homosexuals as such but instead sought to proh
ibit nonprocreative sexual activity more generally. This does not suggest approv
al of
569
homosexual conduct. It does tend to show that this particular form of conduct wa
s not thought of as a separate category from like conduct between heterosexual p
ersons.
Laws prohibiting sodomy do not seem to have been enforced against consenting adu
lts acting in private. A substantial number of sodomy prosecutions and convictio
ns for which there are surviving records were for predatory acts against those w
ho could not or did not consent, as in the case of a minor or the victim of an a
ssault. As to these, one purpose for the prohibitions was to ensure there would
be no lack of coverage if a predator committed a sexual assault that did not con
stitute rape as defined by the criminal law. Thus the model sodomy indictments p
resented in a 19th-century treatise, see 2 Chitty, supra, at 49, addressed the p
redatory acts of an adult man against a minor girl or minor boy. Instead of targ
eting relations between consenting adults in private, 19th-century sodomy prosec
utions typically involved relations between men and minor girls or minor boys, r
elations between adults involving force, relations between adults implicating di
sparity in status, or relations between men and animals.
To the extent that there were any prosecutions for the acts in question, 19th-ce
ntury evidence rules imposed a burden that would make a conviction more difficul
t to obtain even taking into account the problems always inherent in prosecuting
consensual acts committed in private. Under then-prevailing standards, a man co
uld not be convicted of sodomy based upon testimony of a consenting partner, bec
ause the partner was considered an accomplice. A partner's testimony, however, w
as admissible if he or she had not consented to the act or was a minor, and ther
efore incapable of consent. See, e. g., F. Wharton, Criminal Law 443 (2d ed. 185
2); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part
the infrequency of these prosecutions. In all events that infrequency makes it d
ifficult to say that society approved of a rigorous and systematic
570
punishment of the consensual acts committed in private and by adults. The longst
anding criminal prohibition of homosexual sodomy upon which the Bowers decision
placed such reliance is as consistent with a general condemnation of nonprocreat
ive sex as it is with an established tradition of prosecuting acts because of th
eir homosexual character.
The policy of punishing consenting adults for private acts was not much discusse
d in the early legal literature. We can infer that one reason for this was the v
ery private nature of the conduct. Despite the absence of prosecutions, there ma
y have been periods in which there was public criticism of homosexuals as such a
nd an insistence that the criminal laws be enforced to discourage their practice
s. But far from possessing "ancient roots," Bowers, 478 U. S., at 192, American
laws targeting same-sex couples did not develop until the last third of the 20th
century. The reported decisions concerning the prosecution of consensual, homos
exual sodomy between adults for the years 1880-1995 are not always clear in the
details, but a significant number involved conduct in a public place. See Brief
for American Civil Liberties Union et al. as Amici Curiae 14-15, and n. 18.
It was not until the 1970's that any State singled out same-sex relations for cr
iminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts n
o. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687;
1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591
; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105 (Okla. Cri
m. App. 1986) (sodomy law invalidated as applied to different-sex couples). Post
-Bowers even some of these States did not adhere to the policy of suppressing ho
mosexual conduct. Over the course of the last decades, States with same-sex proh
ibitions have moved toward abolishing them. See, e. g., Jegley v. Picado, 349 Ar
k. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (
1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v
. Wasson,
571
842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518 (repealing Nev. Re
v. Stat. § 201.193).
In summary, the historical grounds relied upon in Bowers are more complex than t
he majority opinion and the concurring opinion by Chief Justice Burger indicate.
Their historical premises are not without doubt and, at the very least, are ove
rstated.
It must be acknowledged, of course, that the Court in Bowers was making the broa
der point that for centuries there have been powerful voices to condemn homosexu
al conduct as immoral. The condemnation has been shaped by religious beliefs, co
nceptions of right and acceptable behavior, and respect for the traditional fami
ly. For many persons these are not trivial concerns but profound and deep convic
tions accepted as ethical and moral principles to which they aspire and which th
us determine the course of their lives. These considerations do not answer the q
uestion before us, however. The issue is whether the majority may use the power
of the State to enforce these views on the whole society through operation of th
e criminal law. "Our obligation is to define the liberty of all, not to mandate
our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S.
833, 850 (1992).
Chief Justice Burger joined the opinion for the Court in Bowers and further expl
ained his views as follows: "Decisions of individuals relating to homosexual con
duct have been subject to state intervention throughout the history of Western c
ivilization. Condemnation of those practices is firmly rooted in Judeao-Christia
n moral and ethical standards." 478 U. S., at 196. As with Justice White's assum
ptions about history, scholarship casts some doubt on the sweeping nature of the
statement by Chief Justice Burger as it pertains to private homosexual conduct
between consenting adults. See, e. g., Eskridge, Hardwick and Historiography, 19
99 U. Ill. L. Rev. 631, 656. In all events we think that our laws and traditions
in the past half century are of
572
most relevance here. These references show an emerging awareness that liberty gi
ves substantial protection to adult persons in deciding how to conduct their pri
vate lives in matters pertaining to sex. "[H]istory and tradition are the starti
ng point but not in all cases the ending point of the substantive due process in
quiry." County of Sacramento
This emerging recognition should have been apparent when Bowers was decided. In
1955 the American Law Institute promulgated the Model Penal Code and made clear
that it did not recommend or provide for "criminal penalties for consensual sexu
al relations conducted in private." ALl, Model Penal Code § 213.2, Comment 2, p. 3
72 (1980). It justified its decision on three grounds: (1) The prohibitions unde
rmined respect for the law by penalizing conduct many people engaged in; (2) the
statutes regulated private conduct not harmful to others; and (3) the laws were
arbitrarily enforced and thus invited the danger of blackmail. ALl, Model Penal
Code, Commentary 277-280 (Tent. Draft No.4, 1955). In 1961 Illinois changed its
laws to conform to the Model Penal Code. Other States soon followed. Brief for
Cato Institute as Amicus Curiae 15-16.
In Bowers the Court referred to the fact that before 1961 all 50 States had outl
awed sodomy, and that at the time of the Court's decision 24 States and the Dist
rict of Columbia had sodomy laws. 478 U. S., at 192-193. Justice Powell pointed
out that these prohibitions often were being ignored, however. Georgia, for inst
ance, had not sought to enforce its law for decades. Id., at 197-198, n. 2 ("The
history of nonenforcement suggests the moribund character today of laws crimina
lizing this type of private, consensual conduct").
The sweeping references by Chief Justice Burger to the history of Western civili
zation and to Judeo-Christian moral and ethical standards did not take account o
f other authorities pointing in an opposite direction. A committee advising the
British Parliament recommended in 1957 repeal of laws
573
punishing homosexual conduct. The Wolfenden Report: Report of the Committee on H
omosexual Offenses and Prostitution (1963). Parliament enacted the substance of
those recommendations 10 years later. Sexual Offences Act 1967, § 1.
Of even more importance, almost five years before Bowers was decided the Europea
n Court of Human Rights considered a case with parallels to Bowers and to today'
s case. An adult male resident in Northern Ireland alleged he was a practicing h
omosexual who desired to engage in consensual homosexual conduct. The laws of No
rthern Ireland forbade him that right. He alleged that he had been questioned, h
is home had been searched, and he feared criminal prosecution. The court held th
at the laws proscribing the conduct were invalid under the European Convention o
n Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ~ 52. Author
itative in all countries that are members of the Council of Europe (21 nations t
hen, 45 nations now), the decision is at odds with the premise in Bowers that th
e claim put forward was insubstantial in our Western civilization.
In our own constitutional system the deficiencies in Bowers became even more app
arent in the years following its announcement. The 25 States with laws prohibiti
ng the relevant conduct referenced in the Bowers decision are reduced now to 13,
of which 4 enforce their laws only against homosexual conduct. In those States
where sodomy is still proscribed, whether for same-sex or heterosexual conduct,
there is a pattern of nonenforcement with respect to consenting adults acting in
private. The State of Texas admitted in 1994 that as of that date it had not pr
osecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941,94
3.
Two principal cases decided after Bowers cast its holding into even more doubt.
In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Co
urt reaffirmed the substantive force of the liberty protected by the Due Process
Clause. The Casey decision again confirmed
574
that our laws and tradition afford constitutional protection to personal decisio
ns relating to marriage, procreation, contraception, family relationships, child
rearing, and education. Id., at 851. In explaining the respect the Constitution
demands for the autonomy of the person in making these choices, we stated as fo
llows:
"These matters, involving the most intimate and personal choices a person ma
y make in a lifetime, choices central to personal dignity and autonomy, are cent
ral to the liberty protected by the Fourteenth Amendment. At the heart of libert
y is the right to define one's own concept of existence, of meaning, of the univ
erse, and of the mystery of human life. Beliefs about these matters could not de
fine the attributes of personhood were they formed under compulsion of the State
." Ibid.
Persons in a homosexual relationship may seek autonomy for these purposes, just
as heterosexual persons do. The decision in Bowers would deny them this right.
The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S.
620 (1996). There the Court struck down class-based legislation directed at homo
sexuals as a violation of the Equal Protection Clause. Romer invalidated an amen
dment to Colorado's Constitution which named as a solitary class persons who wer
e homosexuals, lesbians, or bisexual either by "orientation, conduct, practices
or relationships," id., at 624 (internal quotation marks omitted), and deprived
them of protection under state antidiscrimination laws. We concluded that the pr
ovision was "born of animosity toward the class of persons affected" and further
that it had no rational relation to a legitimate governmental purpose. Id., at
634.
As an alternative argument in this case, counsel for the petitioners and some am
ici contend that Romer provides the basis for declaring the Texas statute invali
d under the Equal Protection Clause. That is a tenable argument, but we con-
575
clude the instant case requires us to address whether Bowers itself has continui
ng validity. Were we to hold the statute invalid under the Equal Protection Clau
se some might question whether a prohibition would be valid if drawn differently
, say, to prohibit the conduct both between same-sex and different-sex participa
nts.
Equality of treatment and the due process right to demand respect for conduct pr
otected by the substantive guarantee of liberty are linked in important respects
, and a decision on the latter point advances both interests. If protected condu
ct is made criminal and the law which does so remains unexamined for its substan
tive validity, its stigma might remain even if it were not enforceable as drawn
for equal protection reasons. When homosexual conduct is made criminal by the la
w of the State, that declaration in and of itself is an invitation to subject ho
mosexual persons to discrimination both in the public and in the private spheres
. The central holding of Bowers has been brought in question by this case, and i
t should be addressed. Its continuance as precedent demeans the lives of homosex
ual persons.
The stigma this criminal statute imposes, moreover, is not trivial. The offense,
to be sure, is but a class C misdemeanor, a minor offense in the Texas legal sy
stem. Still, it remains a criminal offense with all that imports for the dignity
of the persons charged. The petitioners will bear on their record the history o
f their criminal convictions. Just this Term we rejected various challenges to s
tate laws requiring the registration of sex offenders. Smith v. Doe, 538 U. S. 8
4 (2003); Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). We are
advised that if Texas convicted an adult for private, consensual homosexual cond
uct under the statute here in question the convicted person would come within th
e registration laws of at least four States were he or she to be subject to thei
r jurisdiction. Pet. for Cert. 13, and n. 12 (citing Idaho Code §§ 18-8301 to 18-832
6 (Cum. Supp. 2002); La. Code Crim. Proc. Ann. §§ 15:540-15:549
576
(West 2003); Miss. Code Ann. §§ 45-33-21 to 45-33-57 (Lexis 2003); S. C. Code Ann. §§ 23
-3-400 to 23-3-490 (West 2002)). This underscores the consequential nature of th
e punishment and the state-sponsored condemnation attendant to the criminal proh
ibition. Furthermore, the Texas criminal conviction carries with it the other co
llateral consequences always following a conviction, such as notations on job ap
plication forms, to mention but one example.
The foundations of Bowers have sustained serious erosion from our recent decisio
ns in Casey and Romer. When our precedent has been thus weakened, criticism from
other sources is of greater significance. In the United States criticism of Bow
ers has been substantial and continuing, disapproving of its reasoning in all re
spects, not just as to its historical assumptions. See, e. g., C. Fried, Order a
nd Law:
Arguing the Reagan Revolution-A Firsthand Account 81-84 (1991); R. Posner, Sex a
nd Reason 341-350 (1992). The courts of five different States have declined to f
ollow it in interpreting provisions in their own state constitutions parallel to
the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 A
rk. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d 18,
24 (1998); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Su
ndquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2
d 487 (Ky. 1992).
To the extent Bowers relied on values we share with a wider civilization, it sho
uld be noted that the reasoning and holding in Bowers have been rejected elsewhe
re. The European Court of Human Rights has followed not Bowers but its own decis
ion in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No.
00044787/98, ~ 56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur.
Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, t
oo, have taken action consistent with an affirmation of the protected right of h
omosexual adults to engage in intimate, consensual conduct. See Brief for Mary
577
Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this ca
se has been accepted as an integral part of human freedom in many other countrie
s. There has been no showing that in this country the governmental interest in c
ircumscribing personal choice is somehow more legitimate or urgent.
The doctrine of stare decisis is essential to the respect accorded to the judgme
nts of the Court and to the stability of the law. It is not, however, an inexora
ble command. Payne v. Tennessee, 501 U. S. 808, 828 (1991) ("Stare decisis is no
t an inexorable command; rather, it 'is a principle of policy and not a mechanic
al formula of adherence to the latest decision'" (quoting Helvering v. Hallock,
309 U. S. 106, 119 (1940))). In Casey we noted that when a court is asked to ove
rrule a precedent recognizing a constitutional liberty interest, individual or s
ocietal reliance on the existence of that liberty cautions with particular stren
gth against reversing course. 505 U. S., at 855-856; see also id., at 844 ("Libe
rty finds no refuge in a jurisprudence of doubt"). The holding in Bowers, howeve
r, has not induced detrimental reliance comparable to some instances where recog
nized individual rights are involved. Indeed, there has been no individual or so
cietal reliance on Bowers of the sort that could counsel against overturning its
holding once there are compelling reasons to do so. Bowers itself causes uncert
ainty, for the precedents before and after its issuance contradict its central h
olding.
The rationale of Bowers does not withstand careful analysis. In his dissenting o
pinion in Bowers JUSTICE STEVENS came to these conclusions:
"Our prior cases make two propositions abundantly clear. First, the fact tha
t the governing majority in a State has traditionally viewed a particular practi
ce as immoral is not a sufficient reason for upholding a law prohibiting the pra
ctice; neither history nor tradition could save a law prohibiting miscegenation
from consti-
578
tutional attack. Second, individual decisions by married persons, concerning
the intimacies of their physical relationship, even when not intended to produc
e offspring, are a form of 'liberty' protected by the Due Process Clause of the
Fourteenth Amendment. Moreover, this protection extends to intimate choices by u
nmarried as well as married persons." 478 U. S., at 216 (footnotes and citations
omitted).
JUSTICE STEVENS' analysis, in our view, should have been controlling in Bowers a
nd should control here.
Bowers was not correct when it was decided, and it is not correct today. It ough
t not to remain binding precedent. Bowers v. Hardwick should be and now is overr
uled.
The present case does not involve minors. It does not involve persons who might
be injured or coerced or who are situated in relationships where consent might n
ot easily be refused. It does not involve public conduct or prostitution. It doe
s not involve whether the government must give formal recognition to any relatio
nship that homosexual persons seek to enter. The case does involve two adults wh
o, with full and mutual consent from each other, engaged in sexual practices com
mon to a homosexual lifestyle. The petitioners are entitled to respect for their
private lives. The State cannot demean their existence or control their destiny
by making their private sexual conduct a crime. Their right to liberty under th
e Due Process Clause gives them the full right to engage in their conduct withou
t intervention of the government. "It is a promise of the Constitution that ther
e is a realm of personal liberty which the government may not enter." Casey, sup
ra, at 847. The Texas statute furthers no legitimate state interest which can ju
stify its intrusion into the personal and private life of the individual.
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment o
r the Fourteenth Amendment known the components of liberty in its manifold possi
bilities, they might have been more specific. They did not presume
579
to have this insight. They knew times can blind us to certain truths and later g
enerations can see that laws once thought necessary and proper in fact serve onl
y to oppress. As the Constitution endures, persons in every generation can invok
e its principles in their own search for greater freedom.
The judgment of the Court of Appeals for the Texas Fourteenth District is revers
ed, and the case is remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
JUSTICE O'CONNOR, concurring in the judgment.
The Court today overrules Bowers v. Hardwick, 478 U. S. 186 (1986). I joined Bow
ers, and do not join the Court in overruling it. Nevertheless, I agree with the
Court that Texas' statute banning same-sex sodomy is unconstitutional. See Tex.
Penal Code Ann. § 21.06 (2003). Rather than relying on the substantive component o
f the Fourteenth Amendment's Due Process Clause, as the Court does, I base my co
nclusion on the Fourteenth Amendment's Equal Protection Clause.
The Equal Protection Clause of the Fourteenth Amendment "is essentially a direct
ion that all persons similarly situated should be treated alike." Cleburne v. Cl
eburne Living Center, Inc., 473 U. S. 432, 439 (1985); see also Plyler v. Doe, 4
57 U. S. 202, 216 (1982). Under our rational basis standard of review, "legislat
ion is presumed to be valid and will be sustained if the classification drawn by
the statute is rationally related to a legitimate state interest." Cleburne v.
Cleburne Living Center, supra, at 440; see also Department of Agriculture v. Mor
eno, 413 U. S. 528, 534 (1973); Romer v. Evans, 517 U. S. 620, 632-633 (1996); N
ordlinger
Laws such as economic or tax legislation that are scrutinized under rational bas
is review normally pass constitutional muster, since "the Constitution presumes
that even improvident decisions will eventually be rectified by the
580
O'CONNOR, J., concurring in judgment
democratic processes." Cleburne v. Cleburne Living Center, supra, at 440; see al
so Fitzgerald v. Racing Assn. of Central Iowa, ante, p. 103; Williamson v. Lee O
ptical of Okla., Inc., 348 U. S. 483 (1955). We have consistently held, however,
that some objectives, such as "a bare ... desire to harm a politically unpopula
r group," are not legitimate state interests. Department of Agriculture v. Moren
o, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447
; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a pol
itically unpopular group, we have applied a more searching form of rational basi
s review to strike down such laws under the Equal Protection Clause.
We have been most likely to apply rational basis review to hold a law unconstitu
tional under the Equal Protection Clause where, as here, the challenged legislat
ion inhibits personal relationships. In Department of Agriculture v. Moreno, for
example, we held that a law preventing those households containing an individua
l unrelated to any other member of the household from receiving food stamps viol
ated equal protection because the purpose of the law was to "'discriminate again
st hippies.''' 413 U. S., at 534. The asserted governmental interest in preventi
ng food stamp fraud was not deemed sufficient to satisfy rational basis review.
Id., at 535-538. In Eisenstadt v. Baird, 405 U. S. 438, 447-455 (1972), we refus
ed to sanction a law that discriminated between married and unmarried persons by
prohibiting the distribution of contraceptives to single persons. Likewise, in
Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a
State to require a home for the mentally disabled to obtain a special use permit
when other residences-like fraternity houses and apartment buildings-did not ha
ve to obtain such a permit. And in Romer v. Evans, we disallowed a state statute
that "impos[ed] a broad and undifferentiated disability on a single named group
"-specifically, homosexuals. 517 U. S., at 632.
581
The statute at issue here makes sodomy a crime only if a person "engages in devi
ate sexual intercourse with another individual of the same sex." Tex. Penal Code
Ann. § 21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a c
rime in Texas. That is, Texas treats the same conduct differently based solely o
n the participants. Those harmed by this law are people who have a same-sex sexu
al orientation and thus are more likely to engage in behavior prohibited by § 21.0
6.
The Texas statute makes homosexuals unequal in the eyes of the law by making par
ticular conduct-and only that conduct-subject to criminal sanction. It appears t
hat prosecutions under Texas' sodomy law are rare. See State v. M 0raZes, 869 S.
W. 2d 941, 943 (Tex. 1994) (noting in 1994 that § 21.06 "has not been, and in all
probability will not be, enforced against private consensual conduct between ad
ults"). This case shows, however, that prosecutions under § 21.06 do occur. And wh
ile the penalty imposed on petitioners in this case was relatively minor, the co
nsequences of conviction are not. It appears that petitioners' convictions, if u
pheld, would disqualify them from or restrict their ability to engage in a varie
ty of professions, including medicine, athletic training, and interior design. S
ee, e. g., Tex. Occ. Code Ann. § 164.051(a)(2)(B) (2003 Pamphlet) (physician); § 451
.251(a)(1) (athletic trainer); § 1053.252(2) (interior designer). Indeed, were pet
itioners to move to one of four States, their convictions would require them to
register as sex offenders to local law enforcement. See, e. g., Idaho Code § 18-83
04 (Cum. Supp. 2002); La. Stat. Ann. § 15:542 (West Cum. Supp. 2003); Miss. Code A
nn. § 45-33-25 (West 2003); S. C. Code Ann. § 23-3-430 (West Cum. Supp. 2002); cf. a
nte, at 575-576.
And the effect of Texas' sodomy law is not just limited to the threat of prosecu
tion or consequence of conviction. Texas' sodomy law brands all homosexuals as c
riminals, thereby making it more difficult for homosexuals to be treated in the
same manner as everyone else. Indeed, Texas
582
O'CONNOR, J., concurring in judgment
itself has previously acknowledged the collateral effects of the law, stipulatin
g in a prior challenge to this action that the law "legally sanctions discrimina
tion against [homosexuals] in a variety of ways unrelated to the criminal law,"
including in the areas of "employment, family issues, and housing." State v. Mor
ales, 826 S. W. 2d 201, 203 (Tex. App. 1992).
Texas attempts to justify its law, and the effects of the law, by arguing that t
he statute satisfies rational basis review because it furthers the legitimate go
vernmental interest of the promotion of morality. In Bowers, we held that a stat
e law criminalizing sodomy as applied to homosexual couples did not violate subs
tantive due process. We rejected the argument that no rational basis existed to
justify the law, pointing to the government's interest in promoting morality. 47
8 U. S., at 196. The only question in front of the Court in Bowers was whether t
he substantive component of the Due Process Clause protected a right to engage i
n homosexual sodomy. Id., at 188, n. 2. Bowers did not hold that moral disapprov
al of a group is a rational basis under the Equal Protection Clause to criminali
ze homosexual sodomy when heterosexual sodomy is not punished.
This case raises a different issue than Bowers: whether, under the Equal Protect
ion Clause, moral disapproval is a legitimate state interest to justify by itsel
f a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not.
Moral disapproval of this group, like a bare desire to harm the group, is an in
terest that is insufficient to satisfy rational basis review under the Equal Pro
tection Clause. See, e. g., Department of Agriculture v. Moreno, 413 U. S., at 5
34; Romer v. Evans, 517 U. S., at 634-635. Indeed, we have never held that moral
disapproval, without any other asserted state interest, is a sufficient rationa
le under the Equal Protection Clause to justify a law that discriminates among g
roups of persons.
583
Moral disapproval of a group cannot be a legitimate governmental interest under
the Equal Protection Clause because legal classifications must not be "drawn for
the purpose of disadvantaging the group burdened by the law." Id., at 633. Texa
s' invocation of moral disapproval as a legitimate state interest proves nothing
more than Texas' desire to criminalize homosexual sodomy. But the Equal Protect
ion Clause prevents a State from creating "a classification of persons undertake
n for its own sake." Id., at 635. And because Texas so rarely enforces its sodom
y law as applied to private, consensual acts, the law serves more as a statement
of dislike and disapproval against homosexuals than as a tool to stop criminal
behavior. The Texas sodomy law "raise[s] the inevitable inference that the disad
vantage imposed is born of animosity toward the class of persons affected." Id.,
at 634.
Texas argues, however, that the sodomy law does not discriminate against homosex
ual persons. Instead, the State maintains that the law discriminates only agains
t homosexual conduct. While it is true that the law applies only to conduct, the
conduct targeted by this law is conduct that is closely correlated with being h
omosexual. Under such circumstances, Texas' sodomy law is targeted at more than
conduct. It is instead directed toward gay persons as a class. "After all, there
can hardly be more palpable discrimination against a class than making the cond
uct that defines the class criminal." Id., at 641 (SCALIA, J., dissenting) (inte
rnal quotation marks omitted). When a State makes homosexual conduct criminal, a
nd not "deviate sexual intercourse" committed by persons of different sexes, "th
at declaration in and of itself is an invitation to subject homosexual persons t
o discrimination both in the public and in the private spheres." Ante, at 575.
Indeed, Texas law confirms that the sodomy statute is directed toward homosexual
s as a class. In Texas, calling a person a homosexual is slander per se because
the word "ho-
584
O'CONNOR, J., concurring in judgment
mosexual" "impute[s] the commission of a crime." Plumley v. Landmark Chevrolet,
Inc., 122 F.3d 308, 310 (CA5 1997) (applying Texas law); see also Head v. Newton
, 596 S. W. 2d 209, 210 (Tex. App. 1980). The State has admitted that because of
the sodomy law, being homosexual carries the presumption of being a criminal. S
ee State v. Morales, 826 S. W. 2d, at 202-203 ("[T]he statute brands lesbians an
d gay men as criminals and thereby legally sanctions discrimination against them
in a variety of ways unrelated to the criminallaw"). Texas' sodomy law therefor
e results in discrimination against homosexuals as a class in an array of areas
outside the criminal law. See ibid. In Romer v. Evans, we refused to sanction a
law that singled out homosexuals "for disfavored legal status." 517 U. S., at 63
3. The same is true here. The Equal Protection Clause "'neither knows nor tolera
tes classes among citizens.''' Id., at 623 (quoting Plessy v. Ferguson, 163 U. S
. 537, 559 (1896) (Harlan, J., dissenting)).
A State can of course assign certain consequences to a violation of its criminal
law. But the State cannot single out one identifiable class of citizens for pun
ishment that does not apply to everyone else, with moral disapproval as the only
asserted state interest for the law. The Texas sodomy statute subjects homosexu
als to "a lifelong penalty and stigma. A legislative classification that threate
ns the creation of an underclass ... cannot be reconciled with" the Equal Protec
tion Clause. Plyler v. Doe, 457 U. S., at 239 (Powell, J., concurring).
Whether a sodomy law that is neutral both in effect and application, see Yick Wo
v. Hopkins, 118 U. S. 356 (1886), would violate the substantive component of th
e Due Process Clause is an issue that need not be decided today. I am confident,
however, that so long as the Equal Protection Clause requires a sodomy law to a
pply equally to the private consensual conduct of homosexuals and heterosexuals
alike, such a
585
law would not long stand in our democratic society. In the words of Justice Jack
son:
"The framers of the Constitution knew, and we should not forget today, that
there is no more effective practical guaranty against arbitrary and unreasonable
government than to require that the principles of law which officials would imp
ose upon a minority be imposed generally. Conversely, nothing opens the door to
arbitrary action so effectively as to allow those officials to pick and choose o
nly a few to whom they will apply legislation and thus to escape the political r
etribution that might be visited upon them if larger numbers were affected." Rai
lway Express Agency, Inc. v. New York, 336 U. S. 106, 112-113 (1949) (concurring
opinion).
That this law as applied to private, consensual conduct is unconstitutional unde
r the Equal Protection Clause does not mean that other laws distinguishing betwe
en heterosexuals and homosexuals would similarly fail under rational basis revie
w. Texas cannot assert any legitimate state interest here, such as national secu
rity or preserving the traditional institution of marriage. Unlike the moral dis
approval of same-sex relations-the asserted state interest in this caseother rea
sons exist to promote the institution of marriage beyond mere moral disapproval
of an excluded group.
A law branding one class of persons as criminal based solely on the State's mora
l disapproval of that class and the conduct associated with that class runs cont
rary to the values of the Constitution and the Equal Protection Clause, under an
y standard of review. I therefore concur in the Court's judgment that Texas' sod
omy law banning "deviate sexual intercourse" between consenting adults of the sa
me sex, but not between consenting adults of different sexes, is unconstitutiona
l.
586
JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.
"Liberty finds no refuge in a jurisprudence of doubt."
Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992). That
was the Court's sententious response, barely more than a decade ago, to those s
eeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court's response today
, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick,
478 U. S. 186 (1986), is very different. The need for stability and certainty p
resents no barrier.
Most of the rest of to day's opinion has no relevance to its actual holding-that
the Texas statute "furthers no legitimate state interest which can justify" its
application to petitioners under rational-basis review. Ante, at 578 (overrulin
g Bowers to the extent it sustained Georgia's antisodomy statute under the ratio
nal-basis test). Though there is discussion of "fundamental proposition[s]," ant
e, at 565, and "fundamental decisions," ibid., nowhere does the Court's opinion
declare that homosexual sodomy is a "fundamental right" under the Due Process Cl
ause; nor does it subject the Texas law to the standard of review that would be
appropriate (strict scrutiny) if homosexual sodomy were a "fundamental right." T
hus, while overruling the outcome of Bowers, the Court leaves strangely untouche
d its central legal conclusion: "[R]espondent would have us announce ... a funda
mental right to engage in homosexual sodomy. This we are quite unwilling to do."
478 U. S., at 191. Instead the Court simply describes petitioners' conduct as "
an exercise of their liberty"-which it undoubtedly is-and proceeds to apply an u
nheard-of form of rational-basis review that will have far-reaching implications
beyond this case. Ante, at 564.
I
I begin with the Court's surprising readiness to reconsider a decision rendered
a mere 17 years ago in Bowers v. Hard-
587
wick. I do not myself believe in rigid adherence to stare decisis in constitutio
nal cases; but I do believe that we should be consistent rather than manipulativ
e in invoking the doctrine. Today's opinions in support of reversal do not bothe
r to distinguish-or indeed, even bother to mentionthe paean to stare decisis coa
uthored by three Members of to day's majority in Planned Parenthood v. Casey. Th
ere, when stare decisis meant preservation of judicially invented abortion right
s, the widespread criticism of Roe was strong reason to reaffirm it:
"Where, in the performance of its judicial duties, the Court decides a case
in such a way as to resolve the sort of intensely divisive controversy reflected
in Roe[,] ... its decision has a dimension that the resolution of the normal ca
se does not carry .... [T]o overrule under fire in the absence of the most compe
lling reason ... would subvert the Court's legitimacy beyond any serious questio
n." 505 U. S., at 866-867.
Today, however, the widespread opposition to Bowers, a decision resolving an iss
ue as "intensely divisive" as the issue in Roe, is offered as a reason in favor
of overruling it. See ante, at 576-577. Gone, too, is any "enquiry" (of the sort
conducted in Casey) into whether the decision sought to be overruled has "prove
n 'unworkable,'" Casey, supra, at 855.
Today's approach to stare decisis invites us to overrule an erroneously decided
precedent (including an "intensely divisive" decision) if" (1) its foundations h
ave been "ero[ded]" by subsequent decisions, ante, at 576; (2) it has been subje
ct to "substantial and continuing" criticism, ibid.; and (3) it has not induced
"individual or societal reliance" that counsels against overturning, ante, at 57
7. The problem is that Roe itself-which to day's majority surely has no disposit
ion to overrule-satisfies these conditions to at least the same degree as Bowers
.
588
(1) A preliminary digressive observation with regard to the first factor: The Co
urt's claim that Planned Parenthood v. Casey, supra, "casts some doubt" upon the
holding in Bowers (or any other case, for that matter) does not withstand analy
sis. Ante, at 571. As far as its holding is concerned, Casey provided a less exp
ansive right to abortion than did Roe, which was already on the books when Bower
s was decided. And if the Court is referring not to the holding of Casey, but to
the dictum of its famed sweet-mystery-of-life passage, ante, at 574 (" 'At the
heart of liberty is the right to define one's own concept of existence, of meani
ng, of the universe, and of the mystery of human life' "): That "casts some doub
t" upon either the totality of our jurisprudence or else (presumably the right a
nswer) nothing at all. I have never heard of a law that attempted to restrict on
e's "right to define" certain concepts; and if the passage calls into question t
he government's power to regulate actions based on one's self-defined "concept o
f existence, etc.," it is the passage that ate the rule of law.
I do not quarrel with the Court's claim that Romer v.
Evans, 517 U. S. 620 (1996), "eroded" the "foundations" of Bowers' rational-basi
s holding. See Romer, supra, at 640643 (SCALIA, J., dissenting). But Roe and Cas
ey have been equally "eroded" by Washington v. Glucksberg, 521 U. S. 702, 721 (1
997), which held that only fundamental rights which are "'deeply rooted in this
Nation's history and tradition'" qualify for anything other than rational-basis
scrutiny under the doctrine of "substantive due process." Roe and Casey, of cour
se, subjected the restriction of abortion to heightened scrutiny without even at
tempting to establish that the freedom to abort was rooted in this Nation's trad
ition.
(2) Bowers, the Court says, has been subject to "substantial and continuing [cri
ticism], disapproving of its reasoning in all respects, not just as to its histo
rical assumptions." Ante, at 576. Exactly what those nonhistorical criticisms ar
e, and whether the Court even agrees with them, are left
589
unsaid, although the Court does cite two books. See ibid. (citing C. Fried, Orde
r and Law: Arguing the Reagan Revolution-A Firsthand Account 81-84 (1991); R. Po
sner, Sex and Reason 341-350 (1992)).1 Of course, Roe too (and by extension Case
y) had been (and still is) subject to unrelenting criticism, including criticism
from the two commentators cited by the Court today. See Fried, supra, at 75 ("R
oe was a prime example of twisted judging"); Posner, supra, at 337 ("[The Court'
s] opinion in Roe ... fails to measure up to professional expectations regarding
judicial opinions"); Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev. 1421,
1434 (1995) (describing the opinion in Roe as an "embarrassing performanc[e]").
(3) That leaves, to distinguish the rock-solid, unamendable disposition of Roe f
rom the readily overrulable Bowers, only the third factor. "[T]here has been," t
he Court says, "no individual or societal reliance on Bowers of the sort that co
uld counsel against overturning its holding .... " Ante, at 577. It seems to me
that the "societal reliance" on the principles confirmed in Bowers and discarded
today has been overwhelming. Countless judicial decisions and legislative enact
ments have relied on the ancient proposition that a governing majority's belief
that certain sexual behavior is "immoral and unacceptable" constitutes a rationa
l basis for regulation. See, e. g., Williams v. Pryor, 240 F.3d 944, 949 (CAll 2
001) (citing Bowers in upholding Alabama's prohibition on the sale of sex toys o
n the ground that "[t]he crafting and safeguarding of public morality ... indisp
utably is a legitimate government interest under rational basis scrutiny"); Miln
er v. Apfel, 148 F.3d 812, 814 (CA7 1998) (citing Bowers for the proposition tha
t "[l]egislatures are permitted to legislate with regard to morality ... rather
than confined
1 This last-cited critic of Bowers actually writes: "[Bowers] is correct neverth
eless that the right to engage in homosexual acts is not deeply rooted in Americ
a's history and tradition." Posner, Sex and Reason, at 343.
590
to preventing demonstrable harms"); Holmes v. California Army National Guard, 12
4 F.3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute
and regulations banning from military service those who engage in homosexual co
nduct); Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bo
wers in holding that "a person has no constitutional right to engage in sexual i
ntercourse, at least outside of marriage"); Sherman v. Henry, 928 S. W. 2d 464,
469-473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional rig
ht to commit adultery). We ourselves relied extensively on Bowers when we conclu
ded, in Barnes v. Glen Theatre, Inc., 501 U. S. 560, 569 (1991), that Indiana's
public indecency statute furthered "a substantial government interest in protect
ing order and morality," ibid. (plurality opinion); see also id., at 575 (SCALIA
, J., concurring in judgment). State laws against bigamy, same-sex marriage, adu
lt incest, prostitution, masturbation, adultery, fornication, bestiality, and ob
scenity are likewise sustainable only in light of Bowers' validation of laws bas
ed on moral choices. Every single one of these laws is called into question by t
o day's decision; the Court makes no effort to cabin the scope of its decision t
o exclude them from its holding. See ante, at 572 (noting "an emerging awareness
that liberty gives substantial protection to adult persons in deciding how to c
onduct their private lives in matters pertaining to sex" (emphasis added)). The
impossibility of distinguishing homosexuality from other traditional "morals" of
fenses is precisely why Bowers rejected the rational-basis challenge. "The law,"
it said, "is constantly based on notions of morality, and if all laws represent
ing essentially moral choices are to be invalidated under the Due Process Clause
, the courts will be very busy indeed." 478 U. S., at 196.2
2 While the Court does not overrule Bowers' holding that homosexual sodomy is no
t a "fundamental right," it is worth noting that the "societal reliance" upon th
at aspect of the decision has been substantial as well.
591
What a massive disruption of the current social order, therefore, the overruling
of Bowers entails. Not so the overruling of Roe, which would simply have restor
ed the regime that existed for centuries before 1973, in which the permissibilit
y of, and restrictions upon, abortion were determined legislatively State by Sta
te. Casey, however, chose to base its stare decisis determination on a different
"sort" of reliance. "[PJeople," it said, "have organized intimate relationships
and made choices that define their views of themselves and their places in soci
ety, in reliance on the availability of abortion in the event that contraception
 should fail." 505 U. S., at 856. This falsely assumes that the consequence of o
verruling Roe would have been to make abortion unlawful. It would not; it would
merely have permitted
See 10 U. S. C. § 654(b)(1) ("A member of the armed forces shall be separated from
the armed forces ... if ... the member has engaged in ... a homosexual act or a
cts"); Marcum v. McWhorter, 308 F.3d 635, 640-642 (CA6 2002) (relying on Bowers
in rejecting a claimed fundamental right to commit adultery); Mullins v. Oregon,
57 F.3d 789, 793-794 (CA9 1995) (relying on Bowers in rejecting a grandparent's
claimed "fundamental liberty interes[t]" in the adoption of her grandchildren);
Doe v. Wigginton, 21 F.3d 733, 739-740 (CA6 1994) (relying on Bowers in rejecti
ng a prisoner's claimed "fundamental right" to on-demand HIV testing); Schowenge
rdt v. United States, 944 F.2d 483, 490 (CA9 1991) (relying on Bowers in upholdi
ng a bisexual's discharge from the armed services); Charles v. Baesler, 910 F.2d
1349, 1353 (CA6 1990) (relying on Bowers in rejecting fire department captain's
claimed "fundamental" interest in a promotion); Henne v. Wright, 904 F.2d 1208,
1214-1215 (CA8 1990) (relying on Bowers in rejecting a claim that state law res
tricting surnames that could be given to children at birth implicates a "fundame
ntal right"); Walls v. Petersburg, 895 F.2d 188, 193 (CA4 1990) (relying on Bowe
rs in rejecting substantivedue-process challenge to a police department question
naire that asked prospective employees about homosexual activity); High Tech Gay
s v. Defense Industrial Security Clearance Office, 895 F.2d 563, 570-571 (CA9 19
88) (relying on Bowers' holding that homosexual activity is not a fundamental ri
ght in rejecting-on the basis of the rational-basis standard-an equalprotection
challenge to the Defense Department's policy of conducting expanded investigatio
ns into backgrounds of gay and lesbian applicants for secret and top-secret secu
rity clearances).
592
the States to do so. Many States would unquestionably have declined to prohibit
abortion, and others would not have prohibited it within six months (after which
the most significant reliance interests would have expired). Even for persons i
n States other than these, the choice would not have been between abortion and c
hildbirth, but between abortion nearby and abortion in a neighboring State.
To tell the truth, it does not surprise me, and should surprise no one, that the
Court has chosen today to revise the standards of stare decisis set forth in Ca
sey. It has thereby exposed Casey's extraordinary deference to precedent for the
result-oriented expedient that it is.
II
Having decided that it need not adhere to stare decisis, the Court still must es
tablish that Bowers was wrongly decided and that the Texas statute, as applied t
o petitioners, is unconstitutional.
Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on liberty
. So do laws prohibiting prostitution, recreational use of heroin, and, for that
matter, working more than 60 hours per week in a bakery. But there is no right
to "liberty" under the Due Process Clause, though to day's opinion repeatedly ma
kes that claim. Ante, at 567 ("The liberty protected by the Constitution allows
homosexual persons the right to make this choice"); ante, at 574 (" 'These matte
rs ... are central to the liberty protected by the Fourteenth Amendment' "); ant
e, at 578 ("Their right to liberty under the Due Process Clause gives them the f
ull right to engage in their conduct without intervention of the government"). T
he Fourteenth Amendment expressly allows States to deprive their citizens of "li
berty," so long as "due process of law" is provided:
"No state shall ... deprive any person of life, liberty, or property, withou
t due process of law." Arndt. 14 (emphasis added).
593
Our opinions applying the doctrine known as "substantive due process" hold that
the Due Process Clause prohibits States from infringing fundamental liberty inte
rests, unless the infringement is narrowly tailored to serve a compelling state
interest. Washington v. Glucksberg, 521 U. S., at 721. We have held repeatedly,
in cases the Court today does not overrule, that only fundamental rights qualify
for this socalled "heightened scrutiny" protection-that is, rights which are "'
deeply rooted in this Nation's history and tradition,'" ibid. See Reno v. Flores
, 507 U. S. 292, 303 (1993) (fundamental liberty interests must be "so rooted in
the traditions and conscience of our people as to be ranked as fundamental" (in
ternal quotation marks and citations omitted)); United States v. Salerno, 481 U.
S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122
(1989) ("[WJe have insisted not merely that the interest denominated as a 'libe
rty' be 'fundamental' ... but also that it be an interest traditionally protecte
d by our society"); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (pluralit
y opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment p
rotects "those privileges long recognized at common law as essential to the orde
rly pursuit of happiness by free men" (emphasis added)).3 All other liberty inte
rests may be abridged or abrogated pursuant to a validly enacted state law if th
at law is rationally related to a legitimate state interest.
3 The Court is quite right that" '[h]istory and tradition are the starting point
but not in all cases the ending point of the substantive due process inquiry,'"
ante, at 572. An asserted "fundamental liberty interest" must not only be "'dee
ply rooted in this Nation's history and tradition,'" Washington v. Glucksberg, 5
21 U. S. 702, 721 (1997), but it must also be "'implicit in the concept of order
ed liberty,'" so that" 'neither liberty nor justice would exist if [it] were sac
rificed,'" ibid. Moreover, liberty interests unsupported by history and traditio
n, though not deserving of "heightened scrutiny," are still protected from state
laws that are not rationally related to any legitimate state interest. Id., at
722. As I proceed to discuss, it is this latter principle that the Court applies
in the present case.
594
Bowers held, first, that criminal prohibitions of homosexual sodomy are not subj
ect to heightened scrutiny because they do not implicate a "fundamental right" u
nder the Due Process Clause, 478 U. S., at 191-194. Noting that "[p]roscriptions
against that conduct have ancient roots," id., at 192, that "[s]odomy was a cri
minal offense at common law and was forbidden by the laws of the original 13 Sta
tes when they ratified the Bill of Rights," ibid., and that many States had reta
ined their bans on sodomy, id., at 193, Bowers concluded that a right to engage
in homosexual sodomy was not "'deeply rooted in this Nation's history and tradit
ion,'" id., at 192.
The Court today does not overrule this holding. Not once does it describe homose
xual sodomy as a "fundamental right" or a "fundamental liberty interest," nor do
es it subject the Texas statute to strict scrutiny. Instead, having failed to es
tablish that the right to homosexual sodomy is " 'deeply rooted in this Nation's
history and tradition,'" the Court concludes that the application of Texas's st
atute to petitioners' conduct fails the rational-basis test, and overrules Bower
s' holding to the contrary, see id., at 196. "The Texas statute furthers no legi
timate state interest which can justify its intrusion into the personal and priv
ate life of the individual." Ante, at 578.
I shall address that rational-basis holding presently.
First, however, I address some aspersions that the Court casts upon Bowers' conc
lusion that homosexual sodomy is not a "fundamental right"-even though, as I hav
e said, the Court does not have the boldness to reverse that conclusion.
III
The Court's description of "the state of the law" at the time of Bowers only con
firms that Bowers was right. Ante, at 566. The Court points to Griswold v. Conne
cticut, 381 U. S. 479, 481-482 (1965). But that case expressly disclaimed any re
liance on the doctrine of "substantive due
595
process," and grounded the so-called "right to privacy" in penumbras of constitu
tional provisions other than the Due Process Clause. Eisenstadt v. Baird, 405 U.
S. 438 (1972), likewise had nothing to do with "substantive due process"; it in
validated a Massachusetts law prohibiting the distribution of contraceptives to
unmarried persons solely on the basis of the Equal Protection Clause. Of course
Eisenstadt contains well-known dictum relating to the "right to privacy," but th
is referred to the right recognized in Griswold-a right penumbral to the specifi
c guarantees in the Bill of Rights, and not a "substantive due process" right.
Roe v. Wade recognized that the right to abort an unborn child was a "fundamenta
l right" protected by the Due Process Clause. 410 U. S., at 155. The Roe Court,
however, made no attempt to establish that this right was "'deeply rooted in thi
s Nation's history and tradition'''; instead, it based its conclusion that "the
Fourteenth Amendment's concept of personal liberty ... is broad enough to encomp
ass a woman's decision whether or not to terminate her pregnancy" on its own nor
mative judgment that antiabortion laws were undesirable. See id., at 153. We hav
e since rejected Roe's holding that regulations of abortion must be narrowly tai
lored to serve a compelling state interest, see Planned Parenthood v. Casey, 505
U. S., at 876 (joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.); id., at 95
1-953 (REHNQUIST, C. J., concurring in judgment in part and dissenting in part)-
and thus, by logical implication, Roe's holding that the right to abort an unbor
n child is a "fundamental right." See 505 U. S., at 843-912 (joint opinion of O'
CONNOR, KENNEDY, and SOUTER, JJ.) (not once describing abortion as a "fundamenta
l right" or a "fundamental liberty interest").
After discussing the history of antisodomy laws, ante, at 568-571, the Court pro
claims that, "it should be noted that there is no longstanding history in this c
ountry of laws directed at homosexual conduct as a distinct matter," ante,
596
at 568. This observation in no way casts into doubt the "definitive [historical]
conclusio[n]," ibid., on which Bowers relied: that our Nation has a longstandin
g history of laws prohibiting sodomy in general-regardless of whether it was per
formed by same-sex or opposite-sex couples:
"It is obvious to us that neither of these formulations would extend a funda
mental right to homosexuals to engage in acts of consensual sodomy. Proscription
s against that conduct have ancient roots. Sodomy was a criminal offense at comm
on law and was forbidden by the laws of the original 13 States when they ratifie
d the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all b
ut 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961
, all 50 States outlawed sodomy, and today, 24 States and the District of Columb
ia continue to provide criminal penalties for sodomy performed in private and be
tween consenting adults. Against this background, to claim that a right to engag
e in such conduct is 'deeply rooted in this Nation's history and tradition' or '
implicit in the concept of ordered liberty' is, at best, facetious." 478 U. S.,
at 192-194 (citations and footnotes omitted; emphasis added).
It is (as Bowers recognized) entirely irrelevant whether the laws in our long na
tional tradition criminalizing homosexual sodomy were "directed at homosexual co
nduct as a distinct matter." Ante, at 568. Whether homosexual sodomy was prohibi
ted by a law targeted at same-sex sexual relations or by a more general law proh
ibiting both homosexual and heterosexual sodomy, the only relevant point is that
it was criminalized-which suffices to establish that homosexual sodomy is not a
right "deeply rooted in our Nation's history and tradition." The Court today ag
rees that homosexual sodomy was criminalized and thus does not dispute the facts
on which Bowers actually relied.
597
Next the Court makes the claim, again unsupported by any citations, that "[l]aws
prohibiting sodomy do not seem to have been enforced against consenting adults
acting in private." Ante, at 569. The key qualifier here is "acting in private"-
since the Court admits that sodomy laws were enforced against consenting adults
(although the Court contends that prosecutions were "infrequen[t]," ibid.). I do
not know what "acting in private" means; surely consensual sodomy, like heteros
exual intercourse, is rarely performed on stage. If all the Court means by "acti
ng in private" is "on private premises, with the doors closed and windows covere
d," it is entirely unsurprising that evidence of enforcement would be hard to co
me by. (Imagine the circumstances that would enable a search warrant to be obtai
ned for a residence on the ground that there was probable cause to believe that
consensual sodomy was then and there occurring.) Surely that lack of evidence wo
uld not sustain the proposition that consensual sodomy on private premises with
the doors closed and windows covered was regarded as a "fundamental right," even
though all other consensual sodomy was criminalized. There are 203 prosecutions
for consensual, adult homosexual sodomy reported in the West Reporting system a
nd official state reporters from the years 1880-1995. See W. Eskridge, Gaylaw: C
hallenging the Apartheid of the Closet 375 (1999) (hereinafter Gaylaw). There ar
e also records of 20 sodomy prosecutions and 4 executions during the colonial pe
riod. J. Katz, Gay/Lesbian Almanac 29, 58, 663 (1983). Bowers' conclusion that h
omosexual sodomy is not a fundamental right "deeply rooted in this Nation's hist
ory and tradition" is utterly unassailable.
Realizing that fact, the Court instead says: "[WJe think that our laws and tradi
tions in the past half century are of most relevance here. These references show
an emerging awareness that liberty gives substantial protection to adult person
s in deciding how to conduct their private lives in matters pertaining to sex."
Ante, at 571-572 (emphasis
598
added). Apart from the fact that such an "emerging awareness" does not establish
a "fundamental right," the statement is factually false. States continue to pro
secute all sorts of crimes by adults "in matters pertaining to sex": prostitutio
n, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, h
ave been enforced "in the past half century," in which there have been 134 repor
ted cases involving prosecutions for consensual, adult, homosexual sodomy. Gayla
w 375. In relying, for evidence of an "emerging recognition," upon the American
Law Institute's 1955 recommendation not to criminalize "'consensual sexual relat
ions conducted in private,'" ante, at 572, the Court ignores the fact that this
recommendation was "a point of resistance in most of the states that considered
adopting the Model Penal Code." Gaylaw 159.
In any event, an "emerging awareness" is by definition not "deeply rooted in thi
s Nation's history and tradition[s]," as we have said "fundamental right" status
requires. Constitutional entitlements do not spring into existence because some
 States choose to lessen or eliminate criminal sanctions on certain behavior. Mu
ch less do they spring into existence, as the Court seems to believe, because fo
reign nations decriminalize conduct. The Bowers majority opinion never relied on
"values we share with a wider civilization," ante, at 576, but rather rejected
the claimed right to sodomy on the ground that such a right was not" 'deeply roo
ted in this Nation's history and tradition,'" 478 U. S., at 193-194 (emphasis ad
ded). Bowers' rational-basis holding is likewise devoid of any reliance on the v
iews of a "wider civilization," see id., at 196. The Court's discussion of these
foreign views (ignoring, of course, the many countries that have retained crimi
nal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, how
ever, since "this Court ... should not impose foreign moods, fads, or fashions o
n Americans." Foster v. Florida, 537 U. S. 990, n. (2002) (THOMAS, J., concurrin
g in denial of certiorari).
599
IV
I turn now to the ground on which the Court squarely rests its holding: the cont
ention that there is no rational basis for the law here under attack. This propo
sition is so out of accord with our jurisprudence-indeed, with the jurisprudence
of any society we know-that it requires little discussion.
The Texas statute undeniably seeks to further the belief of its citizens that ce
rtain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at
196-the same interest furthered by criminal laws against fornication, bigamy, a
dultery, adult incest, bestiality, and obscenity. Bowers held that this was a le
gitimate state interest. The Court today reaches the opposite conclusion. The Te
xas statute, it says, "furthers no legitimate state interest which can justify i
ts intrusion into the personal and private life of the individual," ante, at 578
(emphasis added). The Court embraces instead JUSTICE STEVENS' declaration in hi
s Bowers dissent, that "'the fact that the governing majority in a State has tra
ditionally viewed a particular practice as immoral is not a sufficient reason fo
r upholding a law prohibiting the practice,'" ante, at 577. This effectively dec
rees the end of all morals legislation. If, as the Court asserts, the promotion
of majoritarian sexual morality is not even a legitimate state interest, none of
the above-mentioned laws can survive rational-basis review.
V
Finally, I turn to petitioners' equal-protection challenge, which no Member of t
he Court save JUSTICE O'CONNOR, ante, at 579 (opinion concurring in judgment), e
mbraces: On its face § 21.06(a) applies equally to all persons. Men and women, het
erosexuals and homosexuals, are all subject to its prohibition of deviate sexual
intercourse with someone of the same sex. To be sure, § 21.06 does distinguish be
tween the sexes insofar as concerns the partner with whom the sexual
600
acts are performed: men can violate the law only with other men, and women only
with other women. But this cannot itself be a denial of equal protection, since
it is precisely the same distinction regarding partner that is drawn in state la
ws prohibiting marriage with someone of the same sex while permitting marriage w
ith someone of the opposite sex.
The objection is made, however, that the antimiscegenation laws invalidated in L
oving v. Virginia, 388 U. S. 1, 8 (1967), similarly were applicable to whites an
d blacks alike, and only distinguished between the races insofar as the partner
was concerned. In Loving, however, we correctly applied heightened scrutiny, rat
her than the usual rationalbasis review, because the Virginia statute was "desig
ned to maintain White Supremacy." Id., at 6, 11. A racially discriminatory purpo
se is always sufficient to subject a law to strict scrutiny, even a facially neu
tral law that makes no mention of race. See Washington v. Davis, 426 U. S. 229,
241-242 (1976). No purpose to discriminate against men or women as a class can b
e gleaned from the Texas law, so rational-basis review applies. That review is r
eadily satisfied here by the same rational basis that satisfied it in Bowers-soc
iety's belief that certain forms of sexual behavior are "immoral and unacceptabl
e," 478 U. S., at 196. This is the same justification that supports many other l
aws regulating sexual behavior that make a distinction based upon the identity o
f the partner-for example, laws against adultery, fornication, and adult incest,
and laws refusing to recognize homosexual marriage.
JUSTICE O'CONNOR argues that the discrimination in this law which must be justif
ied is not its discrimination with regard to the sex of the partner but its disc
rimination with regard to the sexual proclivity of the principal actor.
"While it is true that the law applies only to conduct, the conduct targeted
by this law is conduct that is closely correlated with being homosexual. Under
such circumstances, Texas' sodomy law is targeted at more than con-
601
duct. It is instead directed toward gay persons as a class." Ante, at 583.
Of course the same could be said of any law. A law against public nudity targets
"the conduct that is closely correlated with being a nudist," and hence "is tar
geted at more than conduct"; it is "directed toward nudists as a class." But be
that as it may. Even if the Texas law does deny equal protection to "homosexuals
as a class," that denial still does not need to be justified by anything more t
han a rational basis, which our cases show is satisfied by the enforcement of tr
aditional notions of sexual morality.
JUSTICE O'CONNOR simply decrees application of "a more searching form of rationa
l basis review" to the Texas statute. Ante, at 580. The cases she cites do not r
ecognize such a standard, and reach their conclusions only after finding, as req
uired by conventional rational-basis analysis, that no conceivable legitimate st
ate interest supports the classification at issue. See Romer v. Evans, 517 U. S.
, at 635; Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448-450 (1985
); Department of Agriculture v. Moreno, 413 U. S. 528, 534-538 (1973). Nor does
JUSTICE O'CONNOR explain precisely what her "more searching form" of rational-ba
sis review consists of. It must at least mean, however, that laws exhibiting "a
desire to harm a politically unpopular group," ante, at 580, are invalid even th
ough there may be a conceivable rational basis to support them.
This reasoning leaves on pretty shaky grounds state laws limiting marriage to op
posite-sex couples. JUSTICE O'CONNOR seeks to preserve them by the conclusory st
atement that "preserving the traditional institution of marriage" is a legitimat
e state interest. Ante, at 585. But "preserving the traditional institution of m
arriage" is just a kinder way of describing the State's moral disapproval of sam
e-sex couples. Texas's interest in § 21.06 could be recast in similarly euphemisti
c terms: "preserving the traditional sexual mores of our society." In the jurisp
rudence JUSTICE O'CONNOR
602
has seemingly created, judges can validate laws by characterizing them as "prese
rving the traditions of society" (good); or invalidate them by characterizing th
em as "expressing moral disapproval" (bad).
***
Today's opinion is the product of a Court, which is the product of a law-profess
ion culture, that has largely signed on to the so-called homosexual agenda, by w
hich I mean the agenda promoted by some homosexual activists directed at elimina
ting the moral opprobrium that has traditionally attached to homosexual conduct.
I noted in an earlier opinion the fact that the American Association of Law Sch
ools (to which any reputable law school must seek to belong) excludes from membe
rship any school that refuses to ban from its job-interview facilities a law fir
m (no matter how small) that does not wish to hire as a prospective partner a pe
rson who openly engages in homosexual conduct. See Romer, supra, at 653.
One of the most revealing statements in to day's opinion is the Court's grim war
ning that the criminalization of homosexual conduct is "an invitation to subject
homosexual persons to discrimination both in the public and in the private sphe
res." Ante, at 575. It is clear from this that the Court has taken sides in the
culture war, departing from its role of assuring, as neutral observer, that the
democratic rules of engagement are observed. Many Americans do not want persons
who openly engage in homosexual conduct as partners in their business, as scoutm
asters for their children, as teachers in their children's schools, or as boarde
rs in their home. They view this as protecting themselves and their families fro
m a lifestyle that they believe to be immoral and destructive. The Court views i
t as "discrimination" which it is the function of our judgments to deter. So imb
ued is the Court with the law profession's anti-anti-homosexual culture, that it
is seemingly unaware that the attitudes of that
603
culture are not obviously "mainstream"; that in most States what the Court calls
"discrimination" against those who engage in homosexual acts is perfectly legal
; that proposals to ban such "discrimination" under Title VII have repeatedly be
en rejected by Congress, see Employment NonDiscrimination Act of 1994, S. 2238,
103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1s
t Sess. (1975); that in some cases such "discrimination" is mandated by federal
statute, see 10 U. S. C. § 654(b)(1) (mandating discharge from the Armed Forces of
any service member who engages in or intends to engage in homosexual acts); and
that in some cases such "discrimination" is a constitutional right, see Boy Sco
uts of America v. Dale, 530 U. S. 640 (2000).
Let me be clear that I have nothing against homosexuals, or any other group, pro
moting their agenda through normal democratic means. Social perceptions of sexua
l and other morality change over time, and every group has the right to persuade
its fellow citizens that its view of such matters is the best. That homosexuals
have achieved some success in that enterprise is attested to by the fact that T
exas is one of the few remaining States that criminalize private, consensual hom
osexual acts. But persuading one's fellow citizens is one thing, and imposing on
e's views in absence of democratic majority will is something else. I would no m
ore require a State to criminalize homosexual acts-or, for that matter, display
any moral disapprobation of them-than I would forbid it to do so. What Texas has
chosen to do is well within the range of traditional democratic action, and its
hand should not be stayed through the invention of a brand-new "constitutional
right" by a Court that is impatient of democratic change. It is indeed true that
"later generations can see that laws once thought necessary and proper in fact
serve only to oppress," ante, at 579; and when that happens, later generations c
an repeal those laws. But it is the premise of our system that those judgments a
re to be made
604
by the people, and not imposed by a governing caste that knows best.
One of the benefits of leaving regulation of this matter to the people rather th
an to the courts is that the people, unlike judges, need not carry things to the
ir logical conclusion. The people may feel that their disapprobation of homosexu
al conduct is strong enough to disallow homosexual marriage, but not strong enou
gh to criminalize private homosexual acts-and may legislate accordingly. The Cou
rt today pretends that it possesses a similar freedom of action, so that we need
not fear judicial imposition of homosexual marriage, as has recently occurred i
n Canada (in a decision that the Canadian Government has chosen not to appeal).
See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canad
a Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end o
f its opinion-after having laid waste the foundations of our rational-basis juri
sprudence-the Court says that the present case "does not involve whether the gov
ernment must give formal recognition to any relationship that homosexual persons
seek to enter." Ante, at 578. Do not believe it. More illuminating than this ba
ld, unreasoned disclaimer is the progression of thought displayed by an earlier
passage in the Court's opinion, which notes the constitutional protections affor
ded to "personal decisions relating to marriage, procreation, contraception, fam
ily relationships, child rearing, and education," and then declares that "[p]ers
ons in a homosexual relationship may seek autonomy for these purposes, just as h
eterosexual persons do." Ante, at 574 (emphasis added). Today's opinion dismantl
es the structure of constitutional law that has permitted a distinction to be ma
de between heterosexual and homosexual unions, insofar as formal recognition in
marriage is concerned. If moral disapprobation of homosexual conduct is "no legi
timate state interest" for purposes of proscribing that conduct, ante, at 578; a
nd if, as the Court coos (casting aside all pretense of neutrality), "[w]hen
605
sexuality finds overt expression in intimate conduct with another person, the co
nduct can be but one element in a personal bond that is more enduring," ante, at
567; what justification could there possibly be for denying the benefits of mar
riage to homosexual couples exercising "[t]he liberty protected by the Constitut
ion," ibid.? Surely not the encouragement of procreation, since the sterile and
the elderly are allowed to marry. This case "does not involve" the issue of homo
sexual marriage only if one entertains the belief that principle and logic have
nothing to do with the decisions of this Court. Many will hope that, as the Cour
t comfortingly assures us, this is so.
The matters appropriate for this Court's resolution are only three: Texas's proh
ibition of sodomy neither infringes a "fundamental right" (which the Court does
not dispute), nor is unsupported by a rational relation to what the Constitution
considers a legitimate state interest, nor denies the equal protection of the l
aws. I dissent.
JUSTICE THOMAS, dissenting.
I join JUSTICE SCALIA'S dissenting opinion. I write separately to note that the
law before the Court today "is ... uncommonly silly." Griswold v. Connecticut, 3
81 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Te
xas Legislature, I would vote to repeal it. Punishing someone for expressing his
sexual preference through noncommercial consensual conduct with another adult d
oes not appear to be a worthy way to expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a Member of this Court I am not empowe
red to help petitioners and others similarly situated. My duty, rather, is to "d
ecide cases 'agreeably to the Constitution and laws of the United States.'" Id.,
at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rig
hts nor any other part of the
606
Constitution a] general right of privacy," ibid., or as the Court terms it today
, the "liberty of the person both in its spatial and more transcendent dimension
s," ante, at 562.
Syllabus
BOARD OF EDUCATION OF INDEPENDENT SCHOOL DISTRICT NO. 92 OF POTTAWATOMIE COUNTY
ET AL. v. EARLS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 01-332. Argued March 19, 2002-Decided June 27, 2002
The Student Activities Drug Testing Policy (Policy) adopted by the Tecumseh, Okl
ahoma, School District (School District) requires all middle and high school stu
dents to consent to urinalysis testing for drugs in order to participate in any
extracurricular activity. In practice, the Policy has been applied only to compe
titive extracurricular activities sanctioned by the Oklahoma Secondary Schools A
ctivities Association (OSSAA). Respondent high school students and their parents
brought this 42 U. S. C. § 1983 action for equitable relief, alleging that the Po
licy violates the Fourth Amendment. Applying Vernonia School Dist. 47J v. Acton,
515 U. S. 646, in which this Court upheld the suspicionless drug testing of sch
ool athletes, the District Court granted the School District summary judgment. T
he Tenth Circuit reversed, holding that the Policy violated the Fourth Amendment
. It concluded that before imposing a suspicionless drug testing program a schoo
l must demonstrate some identifiable drug abuse problem among a sufficient numbe
r of those tested, such that testing that group will actually redress its drug p
roblem. The court then held that the School District had failed to demonstrate s
uch a problem among Tecumseh students participating in competitive extracurricul
ar activities.
Held: Tecumseh's Policy is a reasonable means of furthering the School District'
s important interest in preventing and deterring drug use among its schoolchildr
en and does not violate the Fourth Amendment. Pp. 828-838.
(a) Because searches by public school officials implicate Fourth Amendment inter
ests, see, e. g., Vernonia, 515 U. S., at 652, the Court must review the Policy
for "reasonableness," the touchstone of constitutionality. In contrast to the cr
iminal context, a probable-cause finding is unnecessary in the public school con
text because it would unduly interfere with maintenance of the swift and informa
l disciplinary procedures that are needed. In the public school context, a searc
h may be reasonable when supported by "special needs" beyond the normal need for
law enforcement. Because the "reasonableness" inquiry cannot dis-
823
regard the schools' custodial and tutelary responsibility for children, id., at
656, a finding of individualized suspicion may not be necessary. In upholding th
e suspicionless drug testing of athletes, the Vernonia Court conducted a fact-sp
ecific balancing of the intrusion on the children's Fourth Amendment rights agai
nst the promotion of legitimate governmental interests. Applying Vernonia's prin
ciples to the somewhat different facts of this case demonstrates that Tecumseh's
Policy is also constitutional. Pp. 828-830.
(b) Considering first the nature of the privacy interest allegedly compromised b
y the drug testing, see Vernonia, 515 U. S., at 654, the Court concludes that th
e students affected by this Policy have a limited expectation of privacy. Respon
dents argue that because children participating in nonathletic extracurricular a
ctivities are not subject to regular physicals and communal undress they have a
stronger expectation of privacy than the Vernonia athletes. This distinction, ho
wever, was not essential in Vernonia, which depended primarily upon the school's
custodial responsibility and authority. See, e. g., id., at 665. In any event,
students who participate in competitive extracurricular activities voluntarily s
ubject themselves to many of the same intrusions on their privacy as do athletes
. Some of these clubs and activities require occasional off-campus travel and co
mmunal undress, and all of them have their own rules and requirements that do no
t apply to the student body as a whole. Each of them must abide by OSSAA rules,
and a faculty sponsor monitors students for compliance with the various rules di
ctated by the clubs and activities. Such regulation further diminishes the schoo
lchildren's expectation of privacy. Pp. 830-832.
(c) Considering next the character of the intrusion imposed by the Policy, see V
ernonia, 515 U. S., at 658, the Court concludes that the invasion of students' p
rivacy is not significant, given the minimally intrusive nature of the sample co
llection and the limited uses to which the test results are put. The degree of i
ntrusion caused by collecting a urine sample depends upon the manner in which pr
oduction of the sample is monitored. Under the Policy, a faculty monitor waits o
utside the closed restroom stall for the student to produce a sample and must li
sten for the normal sounds of urination to guard against tampered specimens and
ensure an accurate chain of custody. This procedure is virtually identical to th
e "negligible" intrusion approved in Vernonia, ibid. The Policy clearly requires
that test results be kept in confidential files separate from a student's other
records and released to school personnel only on a "need to know" basis. Moreov
er, the test results are not turned over to any law enforcement authority. Nor d
o the test
824
Syllabus
results lead to the imposition of discipline or have any academic consequences.
Rather, the only consequence of a failed drug test is to limit the student's pri
vilege of participating in extracurricular activities. Pp. 832-834.
(d) Finally, considering the nature and immediacy of the government's concerns a
nd the efficacy of the Policy in meeting them, see Vernonia, 515 U. S., at 660,
the Court concludes that the Policy effectively serves the School District's int
erest in protecting its students' safety and health. Preventing drug use by scho
olchildren is an important governmental concern. See id., at 661-662. The health
and safety risks identified in Vernonia apply with equal force to Tecumseh's ch
ildren. The School District has also presented specific evidence of drug use at
Tecumseh schools. Teachers testified that they saw students who appeared to be u
nder the influence of drugs and heard students speaking openly about using drugs
. A drug dog found marijuana near the school parking lot. Police found drugs or
drug paraphernalia in a car driven by an extracurricular club member. And the sc
hool board president reported that people in the community were calling the boar
d to discuss the "drug situation." Respondents consider the proffered evidence i
nsufficient and argue that there is no real and immediate interest to justify a
policy of drug testing nonathletes. But a demonstrated drug abuse problem is not
always necessary to the validity of a testing regime, even though some showing
of a problem does shore up an assertion of a special need for a suspicionless ge
neral search program. Chandler v. Miller, 520 U. S. 305, 319. The School Distric
t has provided sufficient evidence to shore up its program. Furthermore, this Co
urt has not required a particularized or pervasive drug problem before allowing
the government to conduct suspicionless drug testing. See, e. g., Treasury Emplo
yees v. Von Raab, 489 U. S. 656, 673-674. The need to prevent and deter the subs
tantial harm of childhood drug use provides the necessary immediacy for a school
testing policy. Given the nationwide epidemic of drug use, and the evidence of
increased drug use in Tecumseh schools, it was entirely reasonable for the Schoo
l District to enact this particular drug testing policy. Pp. 834-838.
242 F.3d 1264, reversed.
THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and S
CALIA, KENNEDY, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion,
post, p. 838. O'CONNOR, J., filed a dissenting opinion, in which SOUTER, J., jo
ined, post, p. 842. GINSBURG, J., filed a dissent-
825
ing opinion, in which STEVENS, O'CONNOR, and SOUTER, JJ., joined, post, p.842.
Linda Maria Meoli argued the cause for petitioners.
With her on the briefs were Stephanie J. Mather and William P. Bleakley.
Deputy Solicitor General Clement argued the cause for the United States as amicu
s curiae urging reversal. With him on the brief were Solicitor General Olson, As
sistant Attorney General McCallum, Gregory G. Garre, Leonard Schaitman, and Lowe
ll v: Sturgill, Jr.
Graham A. Boyd argued the cause for respondents. With him on the brief was Steve
n R. Shapiro. *
JUSTICE THOMAS delivered the opinion of the Court.
The Student Activities Drug Testing Policy implemented by the Board of Education
of Independent School District No. 92 of Pottawatomie County (School District)
requires all students who participate in competitive extracurricular activities
to submit to drug testing. Because this Policy reasonably serves the School Dist
rict's important interest in detecting and preventing drug use among its student
s, we hold that it is constitutional.
* A brief of amici curiae urging reversal was filed for the Washington Legal Fou
ndation et al. by Richard Willard, Daniel J. Popeo, and Richard A. Samp.
Briefs of amici curiae urging affirmance were filed for the American Academy of
Pediatrics et al. by David T. Goldberg and Daniel N. Abrahamson; for Jean Burket
t et al. by Craig Goldblatt; for the Juvenile Law Center et al. by Marsha L. Lev
ick; for the National Association of Criminal Defense Lawyers et al. by John Wes
ley Hall, Jr., Lisa B. Kemler, Timothy Lynch, and Kevin B. Zeese; and for the Ru
therford Institute by John W Whitehead, Steven H. Aden, and Jamin B. Raskin.
Briefs of amici curiae were filed for the Drug-Free Schools Coalition et al. by
David G. Evans; for the National School Boards Association et al. by Julie K. Un
derwood, Christopher B. Gilbert, and Thomas E. Wheeler; and for Professor Akhil
Reed Amar et al. by Julia M. Carpenter.
826
I
The city of Tecumseh, Oklahoma, is a rural community located approximately 40 mi
les southeast of Oklahoma City. The School District administers all Tecumseh pub
lic schools. In the fall of 1998, the School District adopted the Student Activi
ties Drug Testing Policy (Policy), which requires all middle and high school stu
dents to consent to drug testing in order to participate in any extracurricular
activity. In practice, the Policy has been applied only to competitive extracurr
icular activities sanctioned by the Oklahoma Secondary Schools Activities Associ
ation, such as the Academic Team, Future Farmers of America, Future Homemakers o
f America, band, choir, pom pon, cheerleading, and athletics. Under the Policy,
students are required to take a drug test before participating in an extracurric
ular activity, must submit to random drug testing while participating in that ac
tivity, and must agree to be tested at any time upon reasonable suspicion. The u
rinalysis tests are designed to detect only the use of illegal drugs, including
amphetamines, marijuana, cocaine, opiates, and barbituates, not medical conditio
ns or the presence of authorized prescription medications.
At the time of their suit, both respondents attended Tecumseh High School. Respo
ndent Lindsay Earls was a member of the show choir, the marching band, the Acade
mic Team, and the National Honor Society. Respondent Daniel James sought to part
icipate in the Academic Team.1 Together with their parents, Earls and James brou
ght a Rev.
1 The District Court noted that the School District's allegations concerning Dan
iel James called his standing to sue into question because his failing grades ma
de him ineligible to participate in any interscholastic competition. See 115 F.
Supp. 2d 1281, 1282, n. 1 (WD Okla. 2000). The court noted, however, that the di
spute need not be resolved because Lindsay Earls had standing, and therefore the
court was required to address the constitutionality of the drug testing policy.
See ibid. Because we are likewise satisfied that Earls has standing, we need no
t address whether James also has standing.
827
Stat. § 1979,42 U. S. C. § 1983, action against the School District, challenging the
Policy both on its face and as applied to their participation in extracurricula
r activities.2 They alleged that the Policy violates the Fourth Amendment as inc
orporated by the Fourteenth Amendment and requested injunctive and declarative r
elief. They also argued that the School District failed to identify a special ne
ed for testing students who participate in extracurricular activities, and that
the "Drug Testing Policy neither addresses a proven problem nor promises to brin
g any benefit to students or the school." App. 9.
Applying the principles articulated in Vernonia School Dist. J,7J v. Acton, 515
U. S. 646 (1995), in which we upheld the suspicionless drug testing of school at
hletes, the United States District Court for the Western District of Oklahoma re
jected respondents' claim that the Policy was unconstitutional and granted summa
ry judgment to the School District. The court noted that "special needs" exist i
n the public school context and that, although the School District did "not show
a drug problem of epidemic proportions," there was a history of drug abuse star
ting in 1970 that presented "legitimate cause for concern." 115 F. Supp. 2d 1281
, 1287 (2000). The District Court also held that the Policy was effective becaus
e "[i]t can scarcely be disputed that the drug problem among the student body is
effectively addressed by making sure that the large number of students particip
ating in competitive, extracurricular activities do not use drugs." Id., at 1295
.
The United States Court of Appeals for the Tenth Circuit reversed, holding that
the Policy violated the Fourth Amendment. The Court of Appeals agreed with the D
istrict Court that the Policy must be evaluated in the "unique environment of th
e school setting," but reached a different conclu-
2 The respondents did not challenge the Policy either as it applies to athletes
or as it provides for drug testing upon reasonable, individualized suspicion. Se
e App. 28.
828
sion as to the Policy's constitutionality. 242 F.3d 1264, 1270 (2001). Before im
posing a suspicionless drug testing program, the Court of Appeals concluded that
a school "must demonstrate that there is some identifiable drug abuse problem a
mong a sufficient number of those subject to the testing, such that testing that
group of students will actually redress its drug problem." Id., at 1278. The Co
urt of Appeals then held that because the School District failed to demonstrate
such a problem existed among Tecumseh students participating in competitive extr
acurricular activities, the Policy was unconstitutional. We granted certiorari,
534 U. S. 1015 (2001), and now reverse.
II
The Fourth Amendment to the United States Constitution protects "[t]he right of
the people to be secure in their persons, houses, papers, and effects, against u
nreasonable searches and seizures." Searches by public school officials, such as
the collection of urine samples, implicate Fourth Amendment interests. See Vern
onia, supra, at 652; cf. New Jersey v. T. L. 0., 469 U. S. 325, 334 (1985). We m
ust therefore review the School District's Policy for "reasonableness," which is
the touchstone of the constitutionality of a governmental search.
In the criminal context, reasonableness usually requires a showing of probable c
ause. See, e. g., Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 619
(1989). The probable-cause standard, however, "is peculiarly related to crimina
l investigations" and may be unsuited to determining the reasonableness of admin
istrative searches where the "Government seeks to prevent the development of haz
ardous conditions." Treasury Employees v. Von Raab, 489 U. S. 656, 667-668 (1989
) (internal quotation marks and citations omitted) (collecting cases). The Court
has also held that a warrant and finding of probable cause are unnecessary in t
he public school context because such requirements" 'would unduly interfere with
the maintenance of the swift and infor-
829
mal disciplinary procedures [that are] needed.'" Vernonia, supra, at 653 (quotin
g T. L. 0., supra, at 340-341).
Given that the School District's Policy is not in any way related to the conduct
of criminal investigations, see Part II-B, infra, respondents do not contend th
at the School District requires probable cause before testing students for drug
use. Respondents instead argue that drug testing must be based at least on some
level of individualized suspicion. See Brief for Respondents 12-14. It is true t
hat we generally determine the reasonableness of a search by balancing the natur
e of the intrusion on the individual's privacy against the promotion of legitima
te governmental interests. See Delaware v. Prouse, 440 U. S. 648, 654 (1979). Bu
t we have long held that "the Fourth Amendment imposes no irreducible requiremen
t of [individualized] suspicion." United States v. Martinez-Fuerte, 428 U. S. 54
3, 561 (1976). "[I]n certain limited circumstances, the Government's need to dis
cover such latent or hidden conditions, or to prevent their development, is suff
iciently compelling to justify the intrusion on privacy entailed by conducting s
uch searches without any measure of individualized suspicion." Von Raab, supra,
at 668; see also Skinner, supra, at 624. Therefore, in the context of safety and
administrative regulations, a search unsupported by probable cause may be reaso
nable "when 'special needs, beyond the normal need for law enforcement, make the
warrant and probable-cause requirement impracticable.'" Griffin v. Wisconsin, 4
83 U. S. 868, 873 (1987) (quoting T. L. 0., supra, at 351 (Blackmun, J., concurr
ing in judgment)); see also Vernonia, supra, at 653; Skinner, supra, at 619.
Significantly, this Court has previously held that "special needs" inhere in the
public school context. See Vernonia, supra, at 653; T. L. 0., supra, at 339-340
. While schoolchildren do not shed their constitutional rights when they enter t
he schoolhouse, see Tinker v. Des Moines Independent Community School Dist., 393
U. S. 503, 506 (1969), "Fourth
830
Amendment rights ... are different in public schools than elsewhere; the 'reason
ableness' inquiry cannot disregard the schools' custodial and tutelary responsib
ility for children." Vernonia, 515 U. S., at 656. In particular, a finding of in
dividualized suspicion may not be necessary when a school conducts drug testing.
In Vernonia, this Court held that the suspicionless drug testing of athletes was
constitutional. The Court, however, did not simply authorize all school drug te
sting, but rather conducted a fact-specific balancing of the intrusion on the ch
ildren's Fourth Amendment rights against the promotion of legitimate governmenta
l interests. See id., at 652-653. Applying the principles of Vernonia to the som
ewhat different facts of this case, we conclude that Tecumseh's Policy is also c
onstitutional.
A
We first consider the nature of the privacy interest allegedly compromised by th
e drug testing. See id., at 654. As in Vernonia, the context of the public schoo
l environment serves as the backdrop for the analysis of the privacy interest at
stake and the reasonableness of the drug testing policy in general. See ibid. (
"Central ... is the fact that the subjects of the Policy are (1) children, who (
2) have been committed to the temporary custody of the State as schoolmaster");
see also id., at 665 ("The most significant element in this case is the first we
discussed: that the Policy was undertaken in furtherance of the government's re
sponsibilities, under a public school system, as guardian and tutor of children
entrusted to its care"); ibid. ("[W]hen the government acts as guardian and tuto
r the relevant question is whether the search is one that a reasonable guardian
and tutor might undertake").
A student's privacy interest is limited in a public school environment where the
State is responsible for maintaining discipline, health, and safety. Schoolchil
dren are routinely required to submit to physical examinations and vaccinations
831
against disease. See id., at 656. Securing order in the school environment somet
imes requires that students be subjected to greater controls than those appropri
ate for adults. See T. L. 0., 469 U. S., at 350 (Powell, J., concurring) ("Witho
ut first establishing discipline and maintaining order, teachers cannot begin to
educate their students. And apart from education, the school has the obligation
to protect pupils from mistreatment by other children, and also to protect teac
hers themselves from violence by the few students whose conduct in recent years
has prompted national concern").
Respondents argue that because children participating in nonathletic extracurric
ular activities are not subject to regular physicals and communal undress, they
have a stronger expectation of privacy than the athletes tested in Vernonia. See
Brief for Respondents 18-20. This distinction, however, was not essential to ou
r decision in Vernonia, which depended primarily upon the school's custodial res
ponsibility and authority. 3
In any event, students who participate in competitive extracurricular activities
voluntarily subject themselves to many of the same intrusions on their privacy
as do athletes.4
3JUSTICE GINSBURG argues that Vernonia School Dist. 47J v. Acton, 515 U. S. 646
(1995), depended on the fact that the drug testing program applied only to stude
nt athletes. But even the passage cited by the dissent manifests the supplementa
l nature of this factor, as the Court in Vernonia stated that "[l]egitimate priv
acy expectations are even less with regard to student athletes." See post, at 84
7 (quoting Vernonia, 515 U. S., at 657) (emphasis added). In upholding the drug
testing program in Vernonia, we considered the school context "[c]entral" and "[
t]he most significant element." Id., at 654, 665. This hefty weight on the side
of the school's balance applies with similar force in this case even though we u
ndertake a separate balancing with regard to this particular program.
4JUSTICE GINSBURG'S observations with regard to extracurricular activities apply
with equal force to athletics. See post, at 845 ("Participation in such [extrac
urricular] activities is a key component of school life, essential in reality fo
r students applying to college, and, for all participants, a significant contrib
utor to the breadth and quality of the educational experience").
832
Some of these clubs and activities require occasional offcampus travel and commu
nal undress. All of them have their own rules and requirements for participating
students that do not apply to the student body as a whole. 115 F. Supp. 2d, at
1289-1290. For example, each of the competitive extracurricular activities gover
ned by the Policy must abide by the rules of the Oklahoma Secondary Schools Acti
vities Association, and a faculty sponsor monitors the students for compliance w
ith the various rules dictated by the clubs and activities. See id., at 1290. Th
is regulation of extracurricular activities further diminishes the expectation o
f privacy among schoolchildren. Cf. Vernonia, supra, at 657 ("Somewhat like adul
ts who choose to participate in a closely regulated industry, students who volun
tarily participate in school athletics have reason to expect intrusions upon nor
mal rights and privileges, including privacy" (internal quotation marks omitted)
). We therefore conclude that the students affected by this Policy have a limite
d expectation of privacy.
B
Next, we consider the character of the intrusion imposed by the Policy. See Vern
onia, supra, at 658. Urination is "an excretory function traditionally shielded
by great privacy." Skinner, 489 U. S., at 626. But the "degree of intrusion" on
one's privacy caused by collecting a urine sample "depends upon the manner in wh
ich production of the urine sample is monitored." Vernonia, supra, at 658.
Under the Policy, a faculty monitor waits outside the closed restroom stall for
the student to produce a sample and must "listen for the normal sounds of urinat
ion in order to guard against tampered specimens and to insure an accurate chain
of custody." App. 199. The monitor then pours the sample into two bottles that
are sealed and placed into a mailing pouch along with a consent form signed by t
he student. This procedure is virtually identical to that reviewed in Vernonia,
except that it additionally protects privacy by
833
allowing male students to produce their samples behind a closed stall. Given tha
t we considered the method of collection in Vernonia a "negligible" intrusion, 5
15 U. S., at 658, the method here is even less problematic.
In addition, the Policy clearly requires that the test results be kept in confid
ential files separate from a student's other educational records and released to
school personnel only on a "need to know" basis. Respondents nonetheless conten
d that the intrusion on students' privacy is significant because the Policy fail
s to protect effectively against the disclosure of confidential information and,
 specifically, that the school "has been careless in protecting that information
: for example, the Choir teacher looked at students' prescription drug lists and
left them where other students could see them." Brief for Respondents 24. But t
he choir teacher is someone with a "need to know," because during off-campus tri
ps she needs to know what medications are taken by her students. Even before the
Policy was enacted the choir teacher had access to this information. See App. 1
32. In any event, there is no allegation that any other student did see such inf
ormation. This one example of alleged carelessness hardly increases the characte
r of the intrusion.
Moreover, the test results are not turned over to any law enforcement authority.
Nor do the test results here lead to the imposition of discipline or have any a
cademic consequences. Cf. Vernonia, supra, at 658, and n. 2. Rather, the only co
nsequence of a failed drug test is to limit the student's privilege of participa
ting in extracurricular activities. Indeed, a student may test positive for drug
s twice and still be allowed to participate in extracurricular activities. After
the first positive test, the school contacts the student's parent or guardian f
or a meeting. The student may continue to participate in the activity if within
five days of the meeting the student shows proof of receiving drug counseling an
d submits to a second drug test in two weeks. For the second positive test, the
student is suspended from participation in
834
all extracurricular activities for 14 days, must complete four hours of substanc
e abuse counseling, and must submit to monthly drug tests. Only after a third po
sitive test will the student be suspended from participating in any extracurricu
lar activity for the remainder of the school year, or 88 school days, whichever
is longer. See App. 201-202.
Given the minimally intrusive nature of the sample collection and the limited us
es to which the test results are put, we conclude that the invasion of students'
privacy is not significant.
C
Finally, this Court must consider the nature and immediacy of the government's c
oncerns and the efficacy of the Policy in meeting them. See Vernonia, 515 U. S.,
at 660. This Court has already articulated in detail the importance of the gove
rnmental concern in preventing drug use by schoolchildren. See id., at 661-662.
The drug abuse problem among our Nation's youth has hardly abated since Vernonia
was decided in 1995. In fact, evidence suggests that it has only grown worse.5
As in Vernonia, "the necessity for the State to act is magnified by the fact tha
t this evil is being visited not just upon individuals at large, but upon childr
en for whom it has undertaken a special responsibility of care and direction." I
d., at 662. The health and safety risks identified in Vernonia apply with equal
force to Tecumseh's children. Indeed, the nationwide drug epidemic makes the war
against drugs a pressing concern in every school.
Additionally, the School District in this case has presented specific evidence o
f drug use at Tecumseh schools. Teachers testified that they had seen students w
ho appeared to be
5 For instance, the number of 12th graders using any illicit drug increased from
48.4 percent in 1995 to 53.9 percent in 2001. The number of 12th graders report
ing they had used marijuana jumped from 41.7 percent to 49.0 percent during that
same period. See Department of Health and Human Services, Monitoring the Future
: National Results on Adolescent Drug Use, Overview of Key Findings (2001) (Tabl
e 1).
835
under the influence of drugs and that they had heard students speaking openly ab
out using drugs. See, e. g., App. 72 (deposition of Dean Rogers); id., at 115 (d
eposition of Sheila Evans). A drug dog found marijuana cigarettes near the schoo
l parking lot. Police officers once found drugs or drug paraphernalia in a car d
riven by a Future Farmers of America member. And the school board president repo
rted that people in the community were calling the board to discuss the "drug si
tuation." See 115 F. Supp. 2d, at 12851286. We decline to second-guess the findi
ng of the District Court that "[v]iewing the evidence as a whole, it cannot be r
easonably disputed that the [School District] was faced with a 'drug problem' wh
en it adopted the Policy." Id., at 1287.
Respondents consider the proffered evidence insufficient and argue that there is
no "real and immediate interest" to justify a policy of drug testing nonathlete
s. Brief for Respondents 32. We have recognized, however, that "[a] demonstrated
problem of drug abuse ... [is] not in all cases necessary to the validity of a
testing regime," but that some showing does "shore up an assertion of special ne
ed for a suspicionless general search program." Chandler v. Miller, 520 U. S. 30
5, 319 (1997). The School District has provided sufficient evidence to shore up
the need for its drug testing program.
Furthermore, this Court has not required a particularized or pervasive drug prob
lem before allowing the government to conduct suspicionless drug testing. For in
stance, in Von Raab the Court upheld the drug testing of customs officials on a
purely preventive basis, without any documented history of drug use by such offi
cials. See 489 U. S., at 673. In response to the lack of evidence relating to dr
ug use, the Court noted generally that "drug abuse is one of the most serious pr
oblems confronting our society today," and that programs to prevent and detect d
rug use among customs officials could not be deemed unreasonable. Id., at 674; c
f. Skinner, 489 U. S., at 607, and n. 1 (noting nationwide
836
studies that identified on-the-job alcohol and drug use by railroad employees).
Likewise, the need to prevent and deter the substantial harm of childhood drug u
se provides the necessary immediacy for a school testing policy. Indeed, it woul
d make little sense to require a school district to wait for a substantial porti
on of its students to begin using drugs before it was allowed to institute a dru
g testing program designed to deter drug use.
Given the nationwide epidemic of drug use, and the evidence of increased drug us
e in Tecumseh schools, it was entirely reasonable for the School District to ena
ct this particular drug testing policy. We reject the Court of Appeals' novel te
st that "any district seeking to impose a random suspicionless drug testing poli
cy as a condition to participation in a school activity must demonstrate that th
ere is some identifiable drug abuse problem among a sufficient number of those s
ubject to the testing, such that testing that group of students will actually re
dress its drug problem." 242 F. 3d, at 1278. Among other problems, it would be d
ifficult to administer such a test. As we cannot articulate a threshold level of
drug use that would suffice to justify a drug testing program for schoolchildre
n, we refuse to fashion what would in effect be a constitutional quantum of drug
use necessary to show a "drug problem."
Respondents also argue that the testing of nonathletes does not implicate any sa
fety concerns, and that safety is a "crucial factor" in applying the special nee
ds framework. Brief for Respondents 25-27. They contend that there must be "surp
assing safety interests," Skinner, supra, at 634, or "extraordinary safety and n
ational security hazards," Von Raab, supra, at 674, in order to override the usu
al protections of the Fourth Amendment. See Brief for Respondents 25-26. Respond
ents are correct that safety factors into the special needs analysis, but the sa
fety interest furthered by drug testing is undoubtedly substantial for all child
ren, athletes and nonathletes alike. We know all too well that drug
837
use carries a variety of health risks for children, including death from overdos
e.
We also reject respondents' argument that drug testing must presumptively be bas
ed upon an individualized reasonable suspicion of wrongdoing because such a test
ing regime would be less intrusive. See id., at 12-16. In this context, the Four
th Amendment does not require a finding of individualized suspicion, see supra,
at 829, and we decline to impose such a requirement on schools attempting to pre
vent and detect drug use by students. Moreover, we question whether testing base
d on individualized suspicion in fact would be less intrusive. Such a regime wou
ld place an additional burden on public school teachers who are already tasked w
ith the difficult job of maintaining order and discipline. A program of individu
alized suspicion might unfairly target members of unpopular groups. The fear of
lawsuits resulting from such targeted searches may chill enforcement of the prog
ram, rendering it ineffective in combating drug use. See Vernonia, 515 U. S., at
663-664 (offering similar reasons for why "testing based on 'suspicion' of drug
use would not be better, but worse"). In any case, this Court has repeatedly st
ated that reasonableness under the Fourth Amendment does not require employing t
he least intrusive means, because "[t]he logic of such elaborate less-restrictiv
ealternative arguments could raise insuperable barriers to the exercise of virtu
ally all search-and-seizure powers." Martinez-Fuerte, 428 U. S., at 556-557, n.
12; see also Skinner, supra, at 624 ("[A] showing of individualized suspicion is
not a constitutional floor, below which a search must be presumed unreasonable"
).
Finally, we find that testing students who participate in extracurricular activi
ties is a reasonably effective means of addressing the School District's legitim
ate concerns in preventing, deterring, and detecting drug use. While in Vernonia
there might have been a closer fit between the testing of athletes and the tria
l court's finding that the drug problem
838
BREYER, J., concurring
was "fueled by the 'role model' effect of athletes' drug use," such a finding wa
s not essential to the holding. 515 U. S., at 663; cf. id., at 684-685 (O'CONNOR
, J., dissenting) (questioning the extent of the drug problem, especially as app
lied to athletes). Vernonia did not require the school to test the group of stud
ents most likely to use drugs, but rather considered the constitutionality of th
e program in the context of the public school's custodial responsibilities. Eval
uating the Policy in this context, we conclude that the drug testing of Tecumseh
students who participate in extracurricular activities effectively serves the S
chool District's interest in protecting the safety and health of its students.
III
Within the limits of the Fourth Amendment, local school boards must assess the d
esirability of drug testing schoolchildren. In upholding the constitutionality o
f the Policy, we express no opinion as to its wisdom. Rather, we hold only that
Tecumseh's Policy is a reasonable means of furthering the School District's impo
rtant interest in preventing and deterring drug use among its schoolchildren. Ac
cordingly, we reverse the judgment of the Court of Appeals.
It is so ordered.
JUSTICE BREYER, concurring.
I agree with the Court that Vernonia School Dist. J,7J v.
Acton, 515 U. S. 646 (1995), governs this case and requires reversal of the Tent
h Circuit's decision. The school's drug testing program addresses a serious nati
onal problem by focusing upon demand, avoiding the use of criminal or disciplina
ry sanctions, and relying upon professional counseling and treatment. See App. 2
01-202. In my view, this program does not violate the Fourth Amendment's prohibi
tion of "unreasonable searches and seizures." I reach this conclusion primarily
for the reasons given by the Court, but I would
839
emphasize several underlying considerations, which I understand to be consistent
with the Court's opinion.
I
In respect to the school's need for the drug testing program, I would emphasize
the following: First, the drug problem in our Nation's schools is serious in ter
ms of size, the kinds of drugs being used, and the consequences of that use both
for our children and the rest of us. See, e. g., White House Nat. Drug Control
Strategy 25 (Feb. 2002) (drug abuse leads annually to about 20,000 deaths, $160
billion in economic costs); Department of Health and Human Services, L. Johnston
et al., Monitoring the Future: National Results on Adolescent Drug Use, Overvie
w of Key Findings 5 (2001) (Monitoring the Future) (more than one-third of all s
tudents have used illegal drugs before completing the eighth grade; more than ha
lf before completing high school); ibid. (about 30% of all students use drugs ot
her than marijuana prior to completing high school (emphasis added)); National C
enter on Addiction and Substance Abuse, Malignant Neglect: Substance Abuse and A
merica's Schools 15 (Sept. 2001) (Malignant Neglect) (early use leads to later d
rug dependence); Nat. Drug Control Strategy, supra, at 1 (same).
Second, the government's emphasis upon supply side interdiction apparently has n
ot reduced teenage use in recent years. Compare R. Perl, CRS Issue Brief for Con
gress, Drug Control: International Policy and Options CRS-l (Dec. 12, 2001) (sup
ply side programs account for 66% of the federal drug control budget), with Part
nership for a Drug-Free America, 2001 Partnership Attitude Tracking Study: Key F
indings 1 (showing increase in teenage drug use in early 1990's, peak in 1997, h
olding steady thereafter); 2000-2001 PRIDE National Summary: Alcohol, Tobacco, I
llicit Drugs, Violence and Related Behaviors, Grades 6 thru 12 (Jul. 16, 2002),
http://www.pridesurveys.com/main/supportfiles/ natsumOO.pdf, p. 15 (slight rise
in high school drug use in
840
BREYER, J., concurring
2000-2001); Monitoring the Future, Table 1 (lifetime prevalence of drug use incr
easing over last 10 years).
Third, public school systems must find effective ways to deal with this problem.
Today's public expects its schools not simply to teach the fundamentals, but "t
o shoulder the burden of feeding students breakfast and lunch, offering before a
nd after school child care services, and providing medical and psychological ser
vices," all in a school environment that is safe and encourages learning. Brief
for National School Boards Association et al. as Amici Curiae 3-4. See also Beth
el School Dist. No . .1,03 v. Fraser, 478 U. S. 675, 681 (1986) (Schools" 'prepa
re pupils for citizenship in the Republic [and] inculcate the habits and manners
of civility as values in themselves conductive to happiness and as indispensabl
e to the practice of self-government in the community and the nation''') (quotin
g C. Beard & M. Beard, New Basic History of the United States 228 (1968)). The l
aw itself recognizes these responsibilities with the phrase in loco parentis-a p
hrase that draws its legal force primarily from the needs of younger students (w
ho here are necessarily grouped together with older high school students) and wh
ich reflects, not that a child or adolescent lacks an interest in privacy, but t
hat a child's or adolescent's school-related privacy interest, when compared to
the privacy interests of an adult, has different dimensions. Cf. Vernonia, supra
, at 654-655. A public school system that fails adequately to carry out its resp
onsibilities may well see parents send their children to private or parochial sc
hool instead-with help from the State. See Zelman v. Simmons-Harris, ante, p. 63
9.
Fourth, the program at issue here seeks to discourage demand for drugs by changi
ng the school's environment in order to combat the single most important factor
leading schoolchildren to take drugs, namely, peer pressure. Malignant Neglect 4
(students "whose friends use illicit drugs are more than 10 times likelier to u
se illicit drugs than those whose friends do not"). It offers the adolescent a n
onthreat-
841
ening reason to decline his friend's drug-use invitations, namely, that he inten
ds to play baseball, participate in debate, join the band, or engage in anyone o
f half a dozen useful, interesting, and important activities.
II
In respect to the privacy-related burden that the drug testing program imposes u
pon students, I would emphasize the following: First, not everyone would agree w
ith this Court's characterization of the privacy-related significance of urine s
ampling as "'negligible.'" Ante, at 833 (quoting Vernonia, 515 U. S., at 658). S
ome find the procedure no more intrusive than a routine medical examination, but
others are seriously embarrassed by the need to provide a urine sample with som
eone listening "outside the closed restroom stall," ante, at 832. When trying to
resolve this kind of close question involving the interpretation of constitutio
nal values, I believe it important that the school board provided an opportunity
for the airing of these differences at public meetings designed to give the ent
ire community "the opportunity to be able to participate" in developing the drug
policy. App. 87. The board used this democratic, participatory process to uncov
er and to resolve differences, giving weight to the fact that the process, in th
is instance, revealed little, if any, objection to the proposed testing program.
Second, the testing program avoids subjecting the entire school to testing. And
it preserves an option for a conscientious objector. He can refuse testing while
paying a price (nonparticipation) that is serious, but less severe than expulsi
on from the school.
Third, a contrary reading of the Constitution, as requiring "individualized susp
icion" in this public school context, could well lead schools to push the bounda
ries of "individualized suspicion" to its outer limits, using subjective criteri
a that may "unfairly target members of unpopular groups," ante, at 837, or leave
those whose behavior is slightly abnormal
842
GINSBURG, J., dissenting
stigmatized in the minds of others. See Belsky, Random vs. Suspicion-Based Drug
Testing in the Public Schools-A Surprising Civil Liberties Dilemma, 27 Okla. Cit
y U. L. Rev. 1, 20-21 (forthcoming 2002) (listing court-approved factors justify
ing suspicion-based drug testing, including tiredness, overactivity, quietness,
boisterousness, sloppiness, excessive meticulousness, and tardiness). If so, dir
ect application of the Fourth Amendment's prohibition against "unreasonable sear
ches and seizures" will further that Amendment's liberty-protecting objectives a
t least to the same extent as application of the mediating "individualized suspi
cion" test, where, as here, the testing program is neither criminal nor discipli
nary in nature.
***
I cannot know whether the school's drug testing program will work. But, in my vi
ew, the Constitution does not prohibit the effort. Emphasizing the consideration
s I have mentioned, along with others to which the Court refers, I conclude that
the school's drug testing program, constitutionally speaking, is not "unreasona
ble." And I join the Court's opinion.
JUSTICE O'CONNOR, with whom JUSTICE SOUTER joins, dissenting.
I dissented in Vernonia School Dist. J,7J v. Acton, 515 U. S. 646 (1995), and co
ntinue to believe that case was wrongly decided. Because Vernonia is now this Co
urt's precedent, and because I agree that petitioners' program fails even under
the balancing approach adopted in that case, I join JUSTICE GINSBURG'S dissent.
JUSTICE GINSBURG, with whom JUSTICE STEVENS, JusTICE O'CONNOR, and JUSTICE SOUTE
R join, dissenting.
Seven years ago, in Vernonia School Dist. J,7J v. Acton, 515 U. S. 646 (1995), t
his Court determined that a school
843
district's policy of randomly testing the urine of its student athletes for illi
cit drugs did not violate the Fourth Amendment. In so ruling, the Court emphasiz
ed that drug use "increase[d] the risk of sports-related injury" and that Vernon
ia's athletes were the "leaders" of an aggressive local "drug culture" that had
reached "'epidemic proportions.'" Id., at 649. Today, the Court relies upon Vern
onia to permit a school district with a drug problem its superintendent repeated
ly described as "not ... major," see App. 180, 186, 191, to test the urine of an
academic team member solely by reason of her participation in a nonathletic, co
mpetitive extracurricular activity-participation associated with neither special
dangers from, nor particular predilections for, drug use.
"[T]he legality of a search of a student," this Court has instructed, "should de
pend simply on the reasonableness, under all the circumstances, of the search."
New Jersey v. T. L. 0., 469 U. S. 325, 341 (1985). Although" 'special needs' inh
ere in the public school context," see ante, at 829 (quoting Vernonia, 515 U. S.
, at 653), those needs are not so expansive or malleable as to render reasonable
any program of student drug testing a school district elects to install. The pa
rticular testing program upheld today is not reasonable; it is capricious, even
perverse: Petitioners' policy targets for testing a student population least lik
ely to be at risk from illicit drugs and their damaging effects. I therefore dis
sent.
I A
A search unsupported by probable cause nevertheless may be consistent with the F
ourth Amendment "when special needs, beyond the normal need for law enforcement,
make the warrant and probable-cause requirement impracticable." Griffin v. Wisc
onsin, 483 U. S. 868, 873 (1987) (internal quotation marks omitted). In Vernonia
, this Court made clear that "such 'special needs' ... exist in the public schoo
l con-
844
GINSBURG, J., dissenting
text." 515 U. S., at 653 (quoting Griffin, 483 U. S., at 873). The Court observe
d:
"[WJhile children assuredly do not 'shed their constitutional rights ... at
the schoolhouse gate,' Tinker v. Des Moines Independent Community School Dist.,
393 U. S. 503, 506 (1969), the nature of those rights is what is appropriate for
children in school. ... Fourth Amendment rights, no less than First and Fourtee
nth Amendment rights, are different in public schools than elsewhere; the 'reaso
nableness' inquiry cannot disregard the schools' custodial and tutelary responsi
bility for children." 515 U. S., at 655-656 (other citations omitted).
The Vernonia Court concluded that a public school district facing a disruptive a
nd explosive drug abuse problem sparked by members of its athletic teams had "sp
ecial needs" that justified suspicionless testing of district athletes as a cond
ition of their athletic participation.
This case presents circumstances dispositively different from those of Vernonia.
True, as the Court stresses, Tecumseh students participating in competitive ext
racurricular activities other than athletics share two relevant characteristics
with the athletes of Vernonia. First, both groups attend public schools. "[O]ur
decision in Vernonia," the Court states, "depended primarily upon the school's c
ustodial responsibility and authority." Ante, at 831; see also ante, at 840 (BRE
YER, J., concurring) (school districts act in loco parentis). Concern for studen
t health and safety is basic to the school's caretaking, and it is undeniable th
at "drug use carries a variety of health risks for children, including death fro
m overdose." Ante, at 836-837 (majority opinion).
Those risks, however, are present for all schoolchildren.
Vernonia cannot be read to endorse invasive and suspicionless drug testing of al
l students upon any evidence of drug use, solely because drugs jeopardize the li
fe and health of those who use them. Many children, like many adults, en-
845
gage in dangerous activities on their own time; that the children are enrolled i
n school scarcely allows government to monitor all such activities. If a student
has a reasonable subjective expectation of privacy in the personal items she br
ings to school, see T. L. 0., 469 U. S., at 338-339, surely she has a similar ex
pectation regarding the chemical composition of her urine. Had the Vernonia Cour
t agreed that public school attendance, in and of itself, permitted the State to
test each student's blood or urine for drugs, the opinion in Vernonia could hav
e saved many words. See, e. g., 515 U. S., at 662 ("[I]t must not be lost sight
of that [the Vernonia School District] program is directed ... to drug use by sc
hool athletes, where the risk of immediate physical harm to the drug user or tho
se with whom he is playing his sport is particularly high.").
The second commonality to which the Court points is the voluntary character of b
oth interscholastic athletics and other competitive extracurricular activities.
"By choosing to 'go out for the team,' [school athletes] voluntarily subject the
mselves to a degree of regulation even higher than that imposed on students gene
rally." Id., at 657. Comparably, the Court today observes, "students who partici
pate in competitive extracurricular activities voluntarily subject themselves to
" additional rules not applicable to other students. Ante, at 831.
The comparison is enlightening. While extracurricular activities are "voluntary"
in the sense that they are not required for graduation, they are part of the sc
hool's educational program; for that reason, the petitioner (hereinafter School
District) is justified in expending public resources to make them available. Par
ticipation in such activities is a key component of school life, essential in re
ality for students applying to college, and, for all participants, a significant
contributor to the breadth and quality of the educational experience. See Brief
for Respondents 6; Brief for American Academy of Pediatrics et al. as Amici Cur
iae 8-9. Students
846
GINSBURG, J., dissenting
"volunteer" for extracurricular pursuits in the same way they might volunteer fo
r honors classes: They subject themselves to additional requirements, but they d
o so in order to take full advantage of the education offered them. Cf. Lee v. W
eisman, 505 U. S. 577, 595 (1992) ("Attendance may not be required by official d
ecree, yet it is apparent that a student is not free to absent herself from the
graduation exercise in any real sense of the term 'voluntary,' for absence would
require forfeiture of those intangible benefits which have motivated the studen
t through youth and all her high school years.").
Voluntary participation in athletics has a distinctly different dimension: Schoo
ls regulate student athletes discretely because competitive school sports by the
ir nature require communal undress and, more important, expose students to physi
cal risks that schools have a duty to mitigate. For the very reason that schools
cannot offer a program of competitive athletics without intimately affecting th
e privacy of students, Vernonia reasonably analogized school athletes to "adults
who choose to participate in a closely regulated industry." 515 U. S., at 657 (
internal quotation marks omitted). Industries fall within the closely regulated
category when the nature of their activities requires substantial government ove
rsight. See, e. g., United States v. Biswell, 406 U. S. 311, 315-316 (1972). Int
erscholastic athletics similarly require close safety and health regulation; a s
chool's choir, band, and academic team do not.
In short, Vernonia applied, it did not repudiate, the principle that "the legali
ty of a search of a student should depend simply on the reasonableness, under al
l the circumstances, of the search." T. L. 0., 469 U. S., at 341 (emphasis added
). Enrollment in a public school, and election to participate in school activiti
es beyond the bare minimum that the curriculum requires, are indeed factors rele
vant to reasonableness, but they do not on their own justify intrusive, suspicio
nless searches. Vernonia, accordingly, did not rest upon these
847
factors; instead, the Court performed what to day's majority aptly describes as
a "fact-specific balancing," ante, at 830. Balancing of that order, applied to t
he facts now before the Court, should yield a result other than the one the Cour
t announces today.
B
Vernonia initially considered "the nature of the privacy interest upon which the
search [there] at issue intrude[d]." 515 U. S., at 654. The Court emphasized th
at student athletes' expectations of privacy are necessarily attenuated:
"Legitimate privacy expectations are even less with regard to student athlet
es. School sports are not for the bashful. They require 'suiting up' before each
practice or event, and showering and changing afterwards. Public school locker
rooms, the usual sites for these activities, are not notable for the privacy the
y afford. The locker rooms in Vernonia are typical: No individual dressing rooms
are provided; shower heads are lined up along a wall, unseparated by any sort o
f partition or curtain; not even all the toilet stalls have doors .... [T]here i
s an element of communal undress inherent in athletic participation." Id., at 65
7 (internal quotation marks omitted).
Competitive extracurricular activities other than athletics, however, serve stud
ents of all manner: the modest and shy along with the bold and uninhibited. Acti
vities of the kind plaintiff-respondent Lindsay Earls pursued-choir, show choir,
marching band, and academic team-afford opportunities to gain self-assurance, t
o "come to know faculty members in a less formal setting than the typical classr
oom," and to acquire "positive social supports and networks [that] play a critic
al role in periods of heightened stress." Brief for American Academy of Pediatri
cs et al. as Amici Curiae 13.
On "occasional out-of-town trips," students like Lindsay Earls "must sleep toget
her in communal settings and use
848
GINSBURG, J., dissenting
communal bathrooms." 242 F.3d 1264, 1275 (CAlO 2001). But those situations are h
ardly equivalent to the routine communal undress associated with athletics; the
School District itself admits that when such trips occur, "public-like restroom
facilities," which presumably include enclosed stalls, are ordinarily available
for changing, and that "more modest students" find other ways to maintain their
privacy. Brief for Petitioners 34.1
After describing school athletes' reduced expectation of privacy, the Vernonia C
ourt turned to "the character of the intrusion ... complained of." 515 U. S., at
658. Observing that students produce urine samples in a bathroom stall with a c
oach or teacher outside, Vernonia typed the privacy interests compromised by the
process of obtaining samples "negligible." Ibid. As to the required pretest dis
closure of prescription medications taken, the Court assumed that "the School Di
strict would have permitted [a student] to provide the requested information in
a confidential manner-for example, in a sealed envelope delivered to the testing
lab." Id., at 660. On that assumption, the Court concluded that Vernonia's athl
etes faced no significant invasion of privacy.
In this case, however, Lindsay Earls and her parents allege that the School Dist
rict handled personal information collected under the policy carelessly, with li
ttle regard for its confidentiality. Information about students' prescription dr
ug use, they assert, was routinely viewed by Lindsay's choir teacher, who left f
iles containing the information unlocked and unsealed, where others, including s
tudents, could see them; and test results were given out to all activity sponsor
s whether or not they had a clear "need to know." See
1 According to Tecumseh's choir teacher, choir participants who chose not to wea
r their choir uniforms to school on the days of competitions could change either
in "a rest room in a building" or on the bus, where "[m]any of them have figure
d out how to [change] without having [anyone] ... see anything." 2 Appellants' A
pp. in No. 00-6128 (CAlO), p.296.
849
Brief for Respondents 6, 24; App. 105-106, 131. But see id., at 199 (policy requ
ires that "[t]he medication list shall be submitted to the lab in a sealed and c
onfidential envelope and shall not be viewed by district employees").
In granting summary judgment to the School District, the District Court observed
that the District's "[p]olicy expressly provides for confidentiality of test re
sults, and the Court must assume that the confidentiality provisions will be hon
ored." 115 F. Supp. 2d 1281, 1293 (WD Okla. 2000). The assumption is unwarranted
. Unlike Vernonia, where the District Court held a bench trial before ruling in
the School District's favor, this case was decided by the District Court on summ
ary judgment. At that stage, doubtful matters should not have been resolved in f
avor of the judgment seeker. See United States v. Diebold, Inc., 369 U. S. 654,
655 (1962) (per curiam) ("On summary judgment the inferences to be drawn from th
e underlying facts contained in [affidavits, attached exhibits, and depositions]
must be viewed in the light most favorable to the party opposing the motion.");
see also lOA C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 27
16, pp. 274-277 (3d ed. 1998).
Finally, the "nature and immediacy of the governmental concern," Vernonia, 515 U
. S., at 660, faced by the Vernonia School District dwarfed that confronting Tec
umseh administrators. Vernonia initiated its drug testing policy in response to
an alarming situation: "[A] large segment of the student body, particularly thos
e involved in interscholastic athletics, was in a state of rebellion ... fueled
by alcohol and drug abuse as well as the student[s'] misperceptions about the dr
ug culture." Id., at 649 (internal quotation marks omitted). Tecumseh, by contra
st, repeatedly reported to the Federal Government during the period leading up t
o the adoption of the policy that "types of drugs [other than alcohol and tobacc
o] including controlled dangerous substances, are present [in the schools] but h
ave not identified themselves as major problems at this time." 1998-1999 Tecum-
850
GINSBURG, J., dissenting
seh School's Application for Funds under the Safe and DrugFree Schools and Commu
nities Program, reprinted at App. 191; accord, 1996-1997 Application, reprinted
at App. 186; 1995-1996 Application, reprinted at App. 180.2 As the Tenth Circuit
observed, "without a demonstrated drug abuse problem among the group being test
ed, the efficacy of the District's solution to its perceived problem is ... grea
tly diminished." 242 F. 3d, at 1277.
The School District cites Treasury Employees v. Von Raab, 489 U. S. 656, 673-674
(1989), in which this Court permitted random drug testing of customs agents abs
ent "any perceived drug problem among Customs employees," given that "drug abuse
is one of the most serious problems confronting our society today." See also Sk
inner v. Railway Labor Executives' Assn., 489 U. S. 602, 607, and n. 1 (1989) (u
pholding random drug and alcohol testing of railway employees based upon industr
y-wide, rather than railwayspecific, evidence of drug and alcohol problems). The
tests in Von Raab and Railway Labor Executives, however, were installed to avoi
d enormous risks to the lives and limbs of others, not dominantly in response to
the health risks to users invariably present in any case of drug use. See Von R
aab, 489 U. S., at 674 (drug use by customs agents involved in drug interdiction
creates "extraordinary safety and national security hazards"); Railway Labor Ex
ecutives, 489 U. S., at 628 (railway operators "discharge duties fraught with su
ch risks of injury to others that even a momentary lapse of attention can have d
isastrous consequences"); see
2 The Court finds it sufficient that there be evidence of some drug use in Tecum
seh's schools: "As we cannot articulate a threshold level of drug use that would
suffice to justify a drug testing program for schoolchildren, we refuse to fash
ion what would in effect be a constitutional quantum of drug use necessary to sh
ow a 'drug problem.''' Ante, at 836. One need not establish a bright-line "const
itutional quantum of drug use" to recognize the relevance of the superintendent'
s reports characterizing drug use among Tecumseh's students as "not ... [a] majo
r proble[m]," App. 180, 186, 191.
851
also Chandler v. Miller, 520 U. S. 305, 321 (1997) ("Von Raab must be read in it
s unique context").
Not only did the Vernonia and Tecumseh districts confront drug problems of disti
nctly different magnitudes, they also chose different solutions: Vernonia limite
d its policy to athletes; Tecumseh indiscriminately subjected to testing all par
ticipants in competitive extracurricular activities. Urging that "the safety int
erest furthered by drug testing is undoubtedly substantial for all children, ath
letes and nonathletes alike," ante, at 836, the Court cuts out an element essent
ial to the Vernonia judgment. Citing medical literature on the effects of combin
ing illicit drug use with physical exertion, the Vernonia Court emphasized that
"the particular drugs screened by [Vernonia's] Policy have been demonstrated to
pose substantial physical risks to athletes." 515 U. S., at 662; see also id., a
t 666 (GINSBURG, J., concurring) (Vernonia limited to "those seeking to engage w
ith others in team sports"). We have since confirmed that these special risks we
re necessary to our decision in Vernonia. See Chandler, 520 U. S., at 317 (Verno
nia "emphasized the importance of deterring drug use by schoolchildren and the r
isk of injury a drug-using student athlete cast on himself and those engaged wit
h him on the playing field"); see also Ferguson v. Charleston, 532 U. S. 67, 87
(2001) (KENNEDY, J., concurring) (Vernonia's policy had goal of" '[d]eterring dr
ug use by our Nation's schoolchildren,' and particularly by student-athletes, be
cause 'the risk of immediate physical harm to the drug user or those with whom h
e is playing his sport is particularly high''') (quoting Vernonia, 515 U. S., at
661-662).
At the margins, of course, no policy of random drug testing is perfectly tailore
d to the harms it seeks to address. The School District cites the dangers faced
by members of the band, who must "perform extremely precise routines with heavy
equipment and instruments in close proximity to other students," and by Future F
armers of America, who
852
GINSBURG, J., dissenting
"are required to individually control and restrain animals as large as 1500 poun
ds." Brief for Petitioners 43. For its part, the United States acknowledges that
"the linebacker faces a greater risk of serious injury if he takes the field un
der the influence of drugs than the drummer in the halftime band," but parries t
hat "the risk of injury to a student who is under the influence of drugs while p
laying golf, cross country, or volleyball (sports covered by the policy in Verno
nia) is scarcely any greater than the risk of injury to a student ... handling a
1500-pound steer (as [Future Farmers of America] members do) or working with cu
tlery or other sharp instruments (as [Future Homemakers of America] members do).
" Brief for United States as Amicus Curiae 18. One can demur to the Government's
view of the risks drug use poses to golfers, cf. PGA TOUR, Inc. v. Martin, 532
U. S. 661, 687 (2001) ("golf is a low intensity activity"), for golfers were sur
ely as marginal among the linebackers, sprinters, and basketball players targete
d for testing in Vernonia as steer-handlers are among the choristers, musicians,
and academic-team members subject to urinalysis in Tecumseh.3 Notwithstanding n
ightmarish images of out-of-control flatware, livestock run amok, and colliding
tubas disturbing the peace and quiet of Tecumseh, the great majority of students
the School District seeks to test in truth are engaged in activities that are n
ot safety sensitive to an unusual degree. There is a difference between imperfec
t tailoring and no tailoring at all.
The Vernonia district, in sum, had two good reasons for testing athletes: Sports
team members faced special health risks and they "were the leaders of the drug
culture." Vernonia, 515 U. S., at 649. No similar reason, and no other tenable j
ustification, explains Tecumseh's decision to target
3 Cross-country runners and volleyball players, by contrast, engage in substanti
al physical exertion. See Vernonia School Dist. 47J v. Acton, 515 U. S. 646,663
(1995) (describing special dangers of combining drug use with athletics generall
y).
853
for testing all participants in every competitive extracurricular activity. See
Chandler, 520 U. S., at 319 (drug testing candidates for office held incompatibl
e with Fourth Amendment because program was "not well designed to identify candi
dates who violate antidrug laws").
Nationwide, students who participate in extracurricular activities are significa
ntly less likely to develop substance abuse problems than are their less-involve
d peers. See, e. g., N. Zill, C. Nord, & L. Loomis, Adolescent Time Use, Risky B
ehavior, and Outcomes 52 (1995) (tenth graders "who reported spending no time in
school-sponsored activities were ... 49 percent more likely to have used drugs"
than those who spent 1-4 hours per week in such activities). Even if students m
ight be deterred from drug use in order to preserve their extracurricular eligib
ility, it is at least as likely that other students might forgo their extracurri
cular involvement in order to avoid detection of their drug use. Tecumseh's poli
cy thus falls short doubly if deterrence is its aim: It invades the privacy of s
tudents who need deterrence least, and risks steering students at greatest risk
for substance abuse away from extracurricular involvement that potentially may p
alliate drug problems.4
To summarize, this case resembles Vernonia only in that the School Districts in
both cases conditioned engagement in activities outside the obligatory curriculu
m on random subjection to urinalysis. The defining characteristics of the two pr
ograms, however, are entirely dissimilar. The Vernonia district sought to test a
subpopulation of students distinguished by their reduced expectation of privacy
, their special
4 The Court notes that programs of individualized suspicion, unlike those using
random testing, "might unfairly target members of unpopular groups." Ante, at 83
7; see also ante, at 841-842 (BREYER, J., concurring). Assuming, arguendo, that
this is so, the School District here has not exchanged individualized suspicion
for random testing. It has installed random testing in addition to, rather than
in lieu of, testing "at any time when there is reasonable suspicion." App. 197.
854
GINSBURG, J., dissenting
susceptibility to drug-related injury, and their heavy involvement with drug use
. The Tecumseh district seeks to test a much larger population associated with n
one of these factors. It does so, moreover, without carefully safeguarding stude
nt confidentiality and without regard to the program's untoward effects. A progr
am so sweeping is not sheltered by Vernonia; its unreasonable reach renders it i
mpermissible under the Fourth Amendment.
II
In Chandler, this Court inspected "Georgia's requirement that candidates for sta
te office pass a drug test"; we held that the requirement "d[id] not fit within
the closely guarded category of constitutionally permissible suspicionless searc
hes." 520 U. S., at 309. Georgia's testing prescription, the record showed, resp
onded to no "concrete danger," id., at 319, was supported by no evidence of a pa
rticular problem, and targeted a group not involved in "high-risk, safety-sensit
ive tasks," id., at 321-322. We concluded:
"What is left, after close review of Georgia's scheme, is the image the Stat
e seeks to project. By requiring candidates for public office to submit to drug
testing, Georgia displays its commitment to the struggle against drug abuse ....
The need revealed, in short, is symbolic, not 'special,' as that term draws mea
ning from our case law." Ibid.
Close review of Tecumseh's policy compels a similar conclusion. That policy was
not shown to advance the "'special needs' [existing] in the public school contex
t [to maintain] ... swift and informal disciplinary procedures ... [and] order i
n the schools," Vernonia, 515 U. S., at 653 (internal quotation marks omitted).
See supra, at 846-848, 849853. What is left is the School District's undoubted p
urpose to heighten awareness of its abhorrence of, and strong stand against, dru
g abuse. But the desire to augment communica-
855
tion of this message does not trump the right of personseven of children within
the schoolhouse gate-to be "secure in their persons ... against unreasonable sea
rches and seizures." U. S. Const., Arndt. 4.
In Chandler, the Court referred to a pathmarking dissenting opinion in which "Ju
stice Brandeis recognized the importance of teaching by example: 'Our Government
is the potent, the omnipresent teacher. For good or for ill, it teaches the who
le people by its example.'" 520 U. S., at 322 (quoting Olmstead v. United States
, 277 U. S. 438, 485 (1928)). That wisdom should guide decisionmakers in the ins
tant case: The government is nowhere more a teacher than when it runs a public s
chool.
It is a sad irony that the petitioning School District seeks to justify its edic
t here by trumpeting "the schools' custodial and tutelary responsibility for chi
ldren." Vernonia, 515 U. S., at 656. In regulating an athletic program or endeav
oring to combat an exploding drug epidemic, a school's custodial obligations may
permit searches that would otherwise unacceptably abridge students' rights. Whe
n custodial duties are not ascendant, however, schools' tutelary obligations to
their students require them to "teach by example" by avoiding symbolic measures
that diminish constitutional protections. "That [schools] are educating the youn
g for citizenship is reason for scrupulous protection of Constitutional freedoms
of the individual, if we are not to strangle the free mind at its source and te
ach youth to discount important principles of our government as mere platitudes.
" West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 637 (1943).
***
For the reasons stated, I would affirm the judgment of the Tenth Circuit declari
ng the testing policy at issue unconstitutional.